LSE: Public Lectures and Events

Episode: Common Law: A Better Foundation for Liberalism

Date: December 9, 2025
Speaker: Professor John Hasnas (Georgetown University)
Chair/Moderator: Brian (LSE Hayek Program)

Episode Overview

This episode features Professor John Hasnas, presenting key arguments from his book Common Law Liberalism. The main theme is whether common law offers a more reliable and liberal foundation for public policy, as compared to government legislation. Hasnas distinguishes between two central theses:

• Moderate Thesis: Good public policy demands comparative assessment between common law (esp. civil liability) and legislation as regulatory mechanisms.
• Radical Thesis: A flourishing society can exist without legislation—arguably even without monopolistic government services.

The discussion traverses legal history, economic regulation, environmental protection, free speech, criminal law, complexities of litigation, and modern dilemmas like AI and labor displacement.

Key Discussion Points & Insights

Introduction: Framing the Problem ([02:28]–[04:09])

• False Dilemma in Political Philosophy:
  Hasnas critiques the "standard" idea that society must choose between no regulation and government regulation, arguing that the evolution of common law shows a vital third path.
• Invisible Gorilla Experiment:
  Uses the famous psychology experiment to illustrate "inattentional blindness"—analysts miss the regulatory role of civil liability because they're fixated on legislative solutions ([05:03]–[07:22]).

“Civil liability is the invisible gorilla of public policy analysis. It's right there, but we don't see it.”
— Professor Hasnas ([23:08])

The Nature of Law: Common Law vs. Legislation ([11:28]–[18:55])

• Common Law as Emergent Social Order:
  Arises from customs and case decisions, shaping rules for property, contracts, and torts—“case-generated law” evolved before formal governments.
• Legislation:
  Rules imposed by political representatives, susceptible to special interest capture and not necessarily aligned with public good.

Notable Example:

• George Mitchell Story:
  Despite high integrity, used political power to protect local industry at the expense of national environmental reform ([15:49]).

"When the politician with the highest level for integrity tells you that ... you can thwart the public good in order to protect your own parochial special interest, you should believe him."
— Hasnas ([18:29])

The Market and the Myth of the "Unregulated" Realm ([18:55]–[21:58])

• No Truly 'Unregulated' Market:
  All social and economic spheres are constrained by ethics, custom, and especially civil liability, not just government regulation.
• Correct View of Market:
  "The market is the realm of voluntary transactions regulated by custom, ethics, and civil liability.”
• Intersecting Regulation:
  Civil liability (common law) is endogenous to markets and should be evaluated in parallel with legislation.

Revising the Market Failure Argument ([23:39]–[25:00])

• From Government as Necessity, to Comparative Analysis:
  Instead of assuming legislation is always needed to correct negative externalities, one must first assess if custom, ethics, or civil liability are adequate.
• Conclusion of Moderate Thesis:
  “Good public policy analysis requires a comparative assessment of the effectiveness of common law and legislation as regulatory mechanisms.” ([26:35])

Effectiveness of Civil Liability ([27:00]–[36:41])

• Tort Reform as Evidence:
  Persistent corporate lobbying to limit tort liability shows it's highly effective—even “too effective” for some interests ([27:27]).

• McDonald's Coffee Case ([28:20]–[32:12]):

  • Lawsuits over hot coffee changed industry practices faster and more broadly than would have been possible by governmental regulation.

“That's a pretty good example of effective safety regulation. ... There's an army of regulators out there called plaintiffs attorneys. ... There's no way to capture plaintiffs attorneys.”
— Hasnas ([34:18])

• Civil Liability vs. Regulatory Agencies:
  Plaintiffs' lawyers have no public choice constraints; they self-finance and target wrongful conduct. Regulatory capture is endemic in legislation.

Civil Liability Across Policy Areas

Environmental Regulation ([36:41]–[45:32]):

• False Dilemma:
  Problematic framing of environmental issues as a choice between degradation or regulation, neglecting privatization and incentive alignment.
• Example:
  • Seahorse conservation (Philippines)—Aligning incentives/privatization saved species better than government-imposed restrictions.
  • BP Oil Spill—Civil liability initially prevented deep-water drilling; liability caps legislated by government encouraged risky behavior.

Freedom of Speech ([46:45]–[50:52]):

• Common Law Already Regulates Speech:
  Defamation, misrepresentation, intentional infliction of harm—all actionable under tort. The case for additional government regulation is weak and prone to abuse for political suppression.

"There is no such thing as free speech, by the way. There's only free and responsible speech.”
— Hasnas ([48:01])

Criminal Law ([50:52]–[52:12]):

• Torts as Crime Deterrence:
  Assault, battery, etc., are both crimes and torts—civil liability was often the primary social order mechanism before modern criminal law. The role of state punishment should be reconsidered with civil remedies as a viable alternative.

Radical Thesis: Living Without Legislation ([52:12]–[56:40])

• Precedents for Stateless Order:
  Anglo-American law emerged from diverse, competitive courts and customs. Police and centralized governments are recent; order and law predate them.
• Evidence:
  • England flourished before the Bow Street Runners (1749).
  • US society predates public police forces.

“If you can have a society that functioned in the absence of government police, then it’s possible for society to function in the absence of government police.”
— Hasnas ([56:40])

Notable Audience Q&A

On Integrating Common Law in Modern Legal Systems ([57:51], [58:20])

• Question: How could common law be further integrated today?
  Answer: It doesn't need more integration—but society needs to recognize and properly value it alongside legislation ([59:05]).

Insurance, Tort Culture, and Cost Concerns ([59:51], [60:36], [65:34])

• High Insurance Premiums:
  Not necessarily a problem, but the market's way to internalize risk and drive safer practices.
• Access to Justice:
  Civil liability is “poor person’s law”—contingency fees mean you don't need resources to bring a claim.

“If you have no resources, you get into court. … The only chance individuals have against the rich people is the civil liability system.”
— Hasnas ([66:09])

“Isn’t Tort Law Reactive, While Regulation is Preventive?” ([67:09]–[69:16])

• Acknowledgment:
  Sometimes, only prospective legislation can prevent new widespread harms—comparative analysis is essential.
• Common Law Can Be Prospective:
  Court injunctions can preempt harm if a high probability of danger is proven.

Bias and Integrity in the Common Law ([69:29]–[71:58])

• Imperfect but Less Prone to Systemic Corruption:
  Juries (ordinary people) serve as buffers against biased elites; corruption in law is less dangerous case-by-case than when “baked into” legislation by a captured or prejudiced majority.

Dispute Resolution Without Government Monopoly ([72:06]–[75:50])

• Real-World Alternatives:
  Mandatory mediation, private arbitration, customary/religious community resolution—all effective at times.
• International Business:
  Firms voluntarily use reputable courts/arbitrators (e.g., London Commercial Court) without government monopoly.

Juries and Legal Fairness ([76:00]–[78:23])

• Value of Jury System:
  Removing juries shifts power to professional elites, undermining responsiveness to ordinary people's sense of fairness.

Workers’ Rights, Minimum Wage, and Common Law ([78:35]–[80:27])

• Limits of Common Law:
  Common law won’t provide minimum wage; redress for worker exploitation is limited to clear harm like coercion or injury, not low pay:

“If you pay them way too low for what they're worth, there's not going to be a lawsuit. Common law is not going to do that for you.”
— Hasnas ([80:27])

Complex Externalities: Climate Change ([80:35]–[82:15])

• Challenge:
  Complex, diffuse harms like climate change are hard to address via tort/civil liability; regulation may be necessary after comparative analysis.
• Reference:
  Research by Jonathan Adler on international liability mechanisms.

Why Have Government At All? ([82:23]–[84:22])

• Philosophical/Evolutionary Perspective:
  Government often arises from power dynamics, not social necessity—if emergent order suffices, state institutions may merely concentrate oppressive potentials.

Future of Work & Technological Displacement ([84:38]–[87:05])

• Limits of Common Law:
  Won’t prevent technological unemployment; only legal harms can be redressed, not job loss per se; legislative intervention for labor protection is a political choice, not a common law function.

Marriage, Divorce, Children’s Welfare ([87:18]–[89:42])

• Historic Role of Custom:
  Many marital/familial issues historically governed by community custom and religious courts, especially among the poor; statutory law dominates today but studying customary solutions is invaluable.

Memorable Quotes

• “The main point tonight is just this: ... Don't jump to the conclusion that something is wrong in the world and you have to have the government fix it. ... If that's the way we're approaching public policy issues, then we're doing the right thing.” ([25:00])
• “You can capture legislators, you can buy off regulators. ... There’s no way to capture plaintiffs attorneys.” ([34:18])
• “If you have a phone, you have a lawyer. That means that you don't need any resources. It's poor person's law.” ([66:30])
• “If you can have a society that functioned in the absence of government police, then it’s possible for society to function in the absence of government police.” ([56:40])

Timestamps for Important Segments

• Episode Introduction and Overview: [00:02]–[04:09]
• Invisible Gorilla and Inattentional Blindness: [05:03]–[07:22]
• Nature of Law: Common Law & Legislation: [11:28]–[18:55]
• Market, Custom, and Civil Liability: [18:55]–[21:58]
• Market Failure Argument Critique: [21:58]–[25:00]
• Effectiveness of Civil Liability & Tort Stories: [27:00]–[36:41]
• Environmental, Free Speech, Criminal Law Applications: [36:41]–[52:12]
• Radical Thesis—Living Without Legislation/Government: [52:12]–[56:40]
• Q&A Session / Practical Objections: [57:24]–[89:42]

Conclusion

Prof. Hasnas urges policymakers and analysts to challenge the reigning dogma that government legislation is the default (or only) regulatory solution. Instead, comparative analysis must be the starting point, with due attention paid to the robust, decentralized ways in which common law and social custom already regulate behavior. While acknowledging that legislation may sometimes be necessary, his argument champions the liberal virtues of emergent order and civil liability, highlighting their effectiveness, adaptability, and—at times—their superiority to governmental alternatives.

The episode ends with a lively Q&A covering real-world objections, evidential challenges, and the nuances of law in rapidly changing societies.