Can Laws Be Simple? [Introduction to Common Law] [No. 86]
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Can Laws Be Simple? [Introduction to Common Law] [No. 86]


One of the things that one worries about in
putting the common law together is whether or not you can reduce it to a series of relatively
simple rules. And the answer, generally speaking, is yes. With respect to property, the basic rule is
that prior in time is higher in right, so that those people who take possession first
essentially are allowed to keep it against all subsequent takers. This means, in effect, that once the property
rights are established, no individual is entitled to disrupt them. The second principle on voluntary contract
and exchange says, in effect, that if you make an agreement with somebody else for the distribution
of services on the one hand, or property on the other, and both of you agree with the
arrangement, then, in effect, it’s going to be for your mutual gain. And if you can do this with two people, you
could do it with many transactions. So the genius of the contract law is that
you could take any given said of entitlements and use contracts to move them to higher and
better use. Now the system of property and the system
of contract has to be protected against outsiders who would like to wreck it by the use of force,
or by the use of fraud. And so what we do is we develop rules of trespass,
on the one hand, rules dealing with the interference with advantageous relationships on the other,
either by force or by defamation, in order to solidify the first two parts. So, the basic overview of the particular system
is that the property rules get things into play. The contracts rules put them to their best
use. And the tort rules make sure that no outsider
can disrupt what voluntary systems have put together. This means, in effect, that once the property
rights are established, no individual is entitled to disrupt them. Uh, the key point to understand here is many
of these rules when they were first announced were thought to be simply creatures of natural
law without further explanation. The great achievement here was that the early
lawyers managed to put the system together, without any of the modern tools of Social
Sciences. And what we can do now, in retrospect, is to
take those tools, and to explain how it is that natural law principles actually serve
the interest of human welfare and human utility.

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