The Common Law vs Fiat Law – Definitions and Expositions

Today, someone, in an obscure little news group, expressed his libertarian sentiments by saying:

“Common law is good enough for all: You must not cause harm, damage or loss, infringe on the rights of others or use mischief in business. To be accused you must have a flesh and blood accuser who can provide proof of claim against you.A jury of 12 decide your fate.”

Which is true, albeit insufficient. And that insufficiency warrants a little scrutiny.

Starting with the fact that the other distinguishing factor of common law is that judges ‘discover’ new properties of dispute resolution as need arises. Men do not make laws. They discover them in the habits and conventions used by real people in the process of developing written and unwritten contracts with one another.

But more importantly, the common law, because it is reactive, and evolutionary, and organic, rather than intentional and proscriptive prevents “legal plunder”: the use of the violence of POSITIVE LAW (law enacted versus discovered) to plunder the population. In other words, our freedom depends upon the common law, and our prosperity depends upon our freedom.

But that doesn’t mean it’s perfect.


The weakness in common law is this:

When the rate of expansion of an economy results in new entrants into the middle class, new forms of business, new forms of contract, and new technologies, then the evolutionary process of adaptation embodied in the common law comes under duress, since patterns of similarity are difficult for judges to identify. This judicial epistemic delay and lack of coordination can result in return to the perceptoin of ‘arbitrariness’ on behalf of the population which in turn can lead to ‘regime uncertainty’ (fear of trade and exchange due to fear of legal action) which decreases the volume of economic activity and subjects the population to economic vulnerability from external competition. Furthermore, ‘regime uncertainty’ may drive entrepreneurs to seek jurisdictions more favorable to business, which results in capital flight, and a loss of jobs.


Law becomes cumbersome and incalculable when the competing interests of:

      a) Plunder (Redistribution and corruption)
      b) Incentives and Punishments (social engineering)
    c) Subsidies and Burdens (free trade distortions)

compete with the organically driven properties of:

      d) consumer demand
      e) individual property rights
    f) the general habits and methods used by participants to coordinate their activities in any industry.

These two sets create no less than is six dimensions of complexity.

Unfortunately, human beings are almost never capable of making more than a single-axis comparison.
Property rights are the only clear epistemological device for creating a legal system that is calculable.
Every other layer of dimensional complexity will lead to (the opposite) Instead of “regime uncertainty”.


When our English ancestors, and our Founders, fought for ‘their rights as englishmen’, they fought for common law, and the personal sovereignty over their property that must accompany the common law in order for the common law to have coordinated purpose, rather than chaotic result. Only property rights allow rational adjudication of differences between men. All else is chaos.

For these reasons you should never surrender your sovereignty to the state. That we need a government in order to resolve differences among us is one thing. That we should surrender our nobility (rights to allocate our own property) to others is not only illogical, it is impoverishing.

We generally use the terms ‘Freedom’ and ‘Property Rights’. But Freedom has become an ‘appropriated term’ and Property ‘rights’ has become a ‘laundered term’. The more precise and utilitarian terms, that preserve rational debate are:



      instead of freedom.

2) **[glossary:Calculability]** for the purpose of cooperation and coordination instead of ‘rights’.

(Rights are now an abused appropriated term. Something can only be a ‘right’ if it can be given by each individual to each other individual equally. Therefore, we can only NOT do things, not DO things, in order to grant one another ‘rights’. There can be no ‘positive’ rights without fiat law.)

3) **[glossary:Property]** (or several property) instead of property rights.

4) **[glossary:Foregone Opportunity Costs]** instead of duties or obligations.

5) **[glossary:Portfolio of Forgone Opportunity Costs]*** instead of cultural values

Since these terms, Self-Sovereignity, Calculatibity, and Several-Property are NECESSARY properties of human cooperation, rather than indistinct, appropriated, logically inconsistent or emotionally loaded terms, (n-dimensional terms: those that contain unarticulated dimensions for the purpose of distorting causality –ie: fraud — and most commonly for the purpose of mixing emotional reaction, which is a property of the past, with epistemic necessity, which is a property of the future).



      a) COMMON LAW: evolutionary. Organic development. Obtained by observing the normal practices of humans. See “Natural Law”.
    b) FIAT LAW: totalitarian. Made by intention. For the purpose of ALTERING rather than RECOGNIZING the behavior of humans.


      a) Common Law Manners (Protocols that both reduce the friction of operating in a market, as well as symbolize one’s status, and potential merit in the market)
      b) Common Law Ethics (Rules that prevent partial asymmetry of information from being used for theft and fraud, in order to reduce friction and accelerate the rate of production.)
      c) Common Law Morals (Rules that prevent the privatization and therefore corruption – by prohibitiying the externalization of intertemporal costs onto others due to complete asymmetry of information.)
    d) Common law (property) necessary for economic calculation, and coordination in a complex economy.


      a) Regulatory law (industry specific ‘codes’ that prevent fraud and mischief in complex divisions of labor)
      b) Trade Balance Law (industry specific redistributions to allow the state to negotiate for prices with foreign states)
      c) Tax Law (commissions on productivity that are earned by the government in exchange for facilitating the
      d) Redistribution Law (class specific distortions to the economy that permit the state to redistribute from one group to another)
    e) Social Staus Redistribution Laws (commandments upon the behavior of the people in order to redistribute social status)

Manners, Ethics, Morals and the Common Law are a “self evolving, organic system” of rules for coordinating the actions of people in large numbers. As long as judges are allowed to use manners, ethics and morals in concert with the common law, in adjudicating differences.


For this reason alone – ‘common law competition’, multiculturalism is an extremely high burden on an economy when combined with Fiat laws. Political Multiculturalism causes competition between common law systems, that may only be resolved through fiat law. Multiculturalism is then, “The Other Road To Serfdom”.

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