As the West supposedly undergoes a “political realignment,” many thinkers from the right-of-center have attempted to reassess the meaning of conservatism. Some propose we abandon our commitments to market economics, while others seek to double down on classical liberalism. Unfortunately, relatively few of these debates focus on what might be the most operative of conservative institutions today: the common law. If conservatives genuinely seek to preserve what is best about the Anglo-American tradition, we must place a special emphasis on the centuries of legal experience that built up and constituted a treasury of wisdom for all time.

　　The greatest traditionalist minds of our age—on both sides of the Atlantic—have often stressed the importance of common law. The late Sir Roger Scruton, Britain’s most eminent philosopher, argued in Where We Are: The State of Britain Today, that our freedom is rooted in common law. Russell Kirk, the American man of letters, would have agreed. In his book, The Roots of American Order, Kirk wrote about that “in its origins, American personal liberty perhaps owes more to the common law than any other single source.” Moreover, Kirk noted that the English common law is the “footing” for American law more broadly. Kirk believed that the purpose of law “is to keep the peace,” and “prevent or discourage violence and fraud,” so that people living under the law can live with “some security” and therefore freedom. He noted that “rooted in custom and ancient usage, the common law’s purpose was to work for social harmony, not for social revolution.”

　　Kirk outlined many of these distinctively conservative advantages of the common law tradition in America’s British Culture. He argued that the “system of law” that had grown from the “latter half of [the] eleventh century to the present” in England achieved its purpose better than any other legal system. Kirk makes the point that common law is national law and the “law is no respecter of persons” meaning that all people, including kings and residents, are under the law. Kirk wrote that “the English people looked upon common law as their law, the product of their historical experience; it was not something imposed upon them from above.” It is seen as “their law” because it is seen as arising through a cooperative process that has “grown out of practical cases of actual law.” Kirk’s point here is the same as the one made by leading medieval English jurist Henry de Bracton made in his 1235 AD treatise On the Laws and Customs of England. This “assertion of the supremacy of law” on “either side of the ocean” has been one of the explanations of the traditional freedoms enjoyed by Americans and the English.

　　Kirk particularly praised the ways that common law courtroom practices habituated the English-speaking peoples to liberty. For instance, he suggested that the act of “serving on juries” is a “powerful instrument of instructing the public in the nature of law” and “participation in common-law juries taught free men how to assert their part in public concerns.”He also held that the common law presumption of innocence—a concept foreign to civil law—was an important guardian of citizens’ rights. “Roman” courts “generally” have the “interest of the state” first and not the individual, Kirk wrote. Nevertheless, the common law provides for personal liberties that are not provided for under other jurisdictions.

　　In America’s British Culture, Kirk also contends that the common law principle of stare decisis, meaning that judges are “to stand by decided cases,” has a conservative function. The chief advantage of stare decisis, in the American republic, according to Kirk, is that it ensures “evenhanded justice” across not just years but also across decades and centuries. Additionally, it ensures that “accumulated experience of legal custom” is utilised in legal decision-making. This “accumulated experience” has grown over centuries and has popular assent to its “fairness” in outcomes. Relatedly, both Scruton and Kirk praised the common law concept of due process. Articulated in the Magna Carta of 1215, common law jurisdictions have held that those accused of crimes have the right to trial by jury and no imprisonment without a trial. Of course, these are also laid out in the American Constitution’s Fifth and Fourteenth Amendments.

　　Kirk argues that the “Jeffersonian Bill of Rights amendments were simply a reassertion of common-law principles.” They provide a great barrier to tyranny by embedding rights in the very procedure of government. The common law’s provisions against arbitrary government, ensure personal liberty because, as Scruton puts it, they are “available to the citizen by the common law governments.” Kirk goes even further and argues that personal liberty and rights are preserved by the oppositional checks and balances of different authorities created by common law.

　　Beyond this account of individual rights, Kirk and Scruton’s views of common law owe much to earlier thinkers. Eighteenth-century jurist Sir William Blackstone, for instance, praised the common law as an all-pervasive check on tyrannical ambition in his Commentary on the Laws of England. For him, common law was the paradigm of judicial reasoning, especially as independent of the legislature. Echoing Blackstone’s insights—as well as F. A. Hayek’s opposition to central planning—Kirk and Scruton saw common law as a shield against tyranny. Kirk even suggests that “Sir William came to exercise even more influence in America than in Britain.” As Kirk put it, “Americans knew their Blackstone’s Commentaries.” Scruton penned that the common law provides a “paradigm of natural justice.” Scruton saw common law as having an unswerving attachment to a sense of justice and not to the decrees of a higher legislative body. Since common law has this unswerving attachment to justice it is much closer to the demands of justice than other legal systems.

　　Conservatives should defend the common law because it connects the past, present, and future generations together beyond space and time.

　　Why is common law important to personal liberty and freedom more generally? It, according to Scruton, has the “noble aspiration” “to do justice in the individual case, regardless of the interests of power.” Common law is the foundation of good order on which a free society can form and practice self-government. As the common law generates a spontaneous legal order, by an invisible hand of legal customs that have grown out of particular solutions to particular conflicts, it provides for personal liberty. A great advantage of this system is that it bends towards a restoration or to a new state of equilibrium and social harmony due to it solving actual legal cases. Scruton thought that common-law jurisdictions, such as the one in England and USA, were much closer to justice than other jurisdictions that are statute-based systems only.

　　Despite the advantages of common law, both Kirk and Scruton saw challenges to it in both the US and the UK. Both men wrote about statute law supplanting common law. Kirk brought to our attention what seems like a losing battle: “In the twentieth century, the common law of England, of the United States, and indeed of every country that has adapted English common law to its needs, steadily gives ground before the advance of statutory law.”

　　Kirk raised his concerns that “some legislators scarcely seem aware that the common law still exists.” This has a profound impact on the quality of the law but also on our liberty and order within our community of souls. This is because the legislators have “succeeded in enacting statutes which deal in less satisfactory fashion with subjects already adequately covered by common law.” This is important because if it had not been for the “old common law, those representative assemblies which today pour out new statutes might never have come into existence.”

　　In his posthumously published collection Rights and Duties, Kirk deploys the phrase, coined by John Randolph of Roanoke, “legislative maggot” to describe laws dressed up as public good, yet only really serving private interests. Statutory legalisation, according to Kirk, has two main problems: (1) the aforementioned, that statutory legislation can be utilised for private interest and not for public goods, and it can also be hijacked for the means of imposing an ideology onto the people; (2) statutes are unfortunately often written in broad brush strokes, with terms utilised in the text of the act without definition. This leaves room for administrative agencies to interpret and implement the legislation how they see fit and along the lines, they wish the legislation to mean politically rather than in line with the legislators’ intentions. Both of the aforementioned can be performed without any regard to historical circumstance or past precedent. The consequence is the diminishing of liberty by diminishing of self-government. What is the solution to these two main problems of statute law and its encroachment on common law? Kirk suggests that common law is “preferable usually to permit judges to modify laws by degrees rather than to take the risk of damaging the whole frame and spirit of law by frequent legislative or executive intervention.” In the same book, Kirk reminded us that “no matter how admirable a constitution may look upon paper, it will be ineffectual unless the unwritten constitution, the web of custom and convention, affirms an enduring moral order of obligation and personal responsibility.”

　　Scruton believed that common law in the UK had begun to “sink at last” under the weight of “centralised legislation” and especially the “bureaucratic” law of the European Commission. It also had begun to sink because of the “politicised judgements of the European Courts.” Sir Roger did not believe that laws are “made” by judges but were discovered through “reasoned reflection.” He wrote that the “common law is no more made by the judge, than moral law is made by the casuist.” This conception that judges make law has taken hold in some key courts and judges believe that they do actually make the law. Scruton writes in Our Church: A Personal History of the Church of England that “legislation is now initiated by unelected judges in the European Court of Justice and the European Court of Human Rights” with negative impacts on many aspects of life, including personal liberty. As the European bureaucracy is dedicated to the frequent production of European bureaucratic “directives” and the pursuit of so-called “social justice.” This process, as Scruton puts it, is hammering the “invisible hand of tradition and compromise” within the common law tradition, and that “statute is finally killing off the common law.”

　　To end on a positive note from Kirk, despite the challenges to common law it still “keeps the peace among us, under the supremacy of law; and that is an enduring contribution of British culture to America.” Common law needs to be conserved and enhanced on both sides of the ocean. By embedding authority through its use of past precedents, it allows society to adapt to concrete circumstances and organically change over time. But at an even deeper level, conservatives should defend the common law because it connects the past, present, and future generations together beyond space and time.