The common law as an inherited baseline
In the account Brian Walsh gives, the Anglo-American common law had developed for roughly 500 years or more by the time of the American founding, and it carried certain presumptions: that criminal law should be reserved for the really heinous, inherently wrongful conduct, and that punishment should require criminal intent. Those two concepts, he says, were at the core of the criminal law until the beginning of the 20th century “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015).
Bob Zadek’s own framing of the common law in that episode is that it evolved as people lived together in society and developed rules over time through experience — not rules enacted by a legislator with a worldview, but rules enacted collectively by the behavior of millions of people interacting and learning from experience. On this view the common law is highly small-d democratic, representing the best that human beings have learned about interacting, and it therefore has to be the starting point “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015).
Walsh adds a constitutional point: the Constitution was not created ex nihilo but adopted in the context of the existing common law. It says there is a right to trial by jury without defining trial or jury, because those things already had a definition in the common law; likewise, what it meant for something to be a crime was already defined, requiring a guilty act and a guilty mind “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015).
Harvey Silverglate supplies the concrete version of this inheritance. With the exception of Louisiana, he says, the states all operate under the English common law system, meaning the definitions of crimes such as larceny and assault and battery have been defined by hundreds and hundreds of years of judicial decisions and legal precedents. The result is that everyone understands what stealing is — steal a bag of potato chips from a supermarket and that is larceny; steal enough bags and it is grand larceny — and everyone understands what assault and battery is The FBI: Our Uninvited Federal Police Force (2022).
The 20th-century turn against common law presumptions
Walsh describes a shift in the 20th century in which the common law theory of crime came under scrutiny and more and more experts began to see criminal law as a way of controlling and shaping behavior. They began to throw out restrictions on what criminal law should punish and to promote the idea that criminal law was just another handy tool to be used for a socioeconomic end or goal. The idea of the guilty mind became less and less important, especially at the federal level to start with, and experimentation followed with criminalizing economic and social conduct “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015).
Zadek opens that discussion by noting the scale of the change: the country started with three federal crimes and now has somewhere around 5,000 if regulations that criminalize conduct are ignored “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015). Walsh says that only not that long ago did people begin to realize the criminal law was out of control and that a return to first principles was needed, naming the Heritage Foundation, the National Association of Criminal Defense Lawyers, and the Ethics and Public Policy Center, where he works, as organizations that began working on Capitol Hill to reinstate those principles. He frames the stakes as criminal law being very powerful and very dangerous: vital to a productive and functioning society when used properly and justly, but destructive of lives, livelihoods and families when applied too frequently and aggressively under a superabundance of overly broad criminal laws “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015).
Silverglate gives the federal expansion a doctrinal history. The U.S. Supreme Court, which could have stopped it, enabled it, buying into the notion that using the means of interstate commerce or interstate communication converts what would otherwise be a classic common law crime covered by the states into a federal crime. He ties the enlargement of federal jurisdiction to the New Deal and the Depression, which he says enlarged the scope of federal jurisdiction in American life, and notes that the Supreme Court allowed the theory of increased federal jurisdiction to operate in the criminal justice system, which he calls a tremendous threat to American liberty The FBI: Our Uninvited Federal Police Force (2022).
The contrast Silverglate draws is between the common law notion that a person can be prosecuted and punished for knowingly violating a clear obligation and a system in which someone can get 10, 15 or 20 years in federal prison for conduct a prosecutor can convince a judge is a crime — fraud, for example — as long as the telephone, the mails or the means of interstate communication are used. He calls mail fraud a vague notion of a fraud committed by the use of the mails, and says such offenses are ill-defined and deracinated from common law definitions of what crimes should be. He adds that he has had investigations done of him because he is a loudmouth, high-profile civil liberties and criminal defense lawyer, and that this is not a good formula for a free society The FBI: Our Uninvited Federal Police Force (2022).
Zadek’s framing in that exchange is federalist: fraud is a crime in every state, and a person who defrauds another has committed a crime in a jurisdiction with a police force, a court system, a jail and a prison able to deal with it. He offers California’s decision that using marijuana should not be a crime in that state, with Nevada free to reach a different conclusion, as federalism in action The FBI: Our Uninvited Federal Police Force (2022).
Common law as an export: Dubai and Hong Kong
Michael Strong describes the Dubai International Financial Centre as an innovation in free zones in which 110 acres of land were placed under British common law while the rest of Dubai and the UAE operates under Sharia law, which he notes forbids charging interest and is therefore terrible for finance. The rulers of Dubai, he says, looked around the world at the leading financial centers — London, New York, Chicago, Sydney, Hong Kong, Singapore — saw that all of them run British common law, and put a retired British commercial law judge and a retired Singaporean commercial law judge in charge. With credible judges administering common law, he says, Dubai is now a top 20 financial center Michael Strong on Creating a World in Which All Humanity Flourishes (2017).
Strong also reports that Honduras passed legislation a few years ago allowing jurisdictions similar to the Dubai International Financial Centre, permitting jurisdictions with common law and free markets within Honduras, in the hope of creating pockets of prosperity and preventing the need for Hondurans to leave for the US. He identifies places with new jurisdictions based on common law as the brightest hope, and imagines developing countries experimenting with common law jurisdictions and special economic zones designed for entrepreneurial capitalism Michael Strong on Creating a World in Which All Humanity Flourishes (2017).
Tom W. Bell, asked by Zadek to explain zones through examples the audience would know, treats Hong Kong and the UAE as special jurisdictions that use the common law. On Hong Kong he says it is not the best example of how such a jurisdiction is formed, because it was forced on the Qing Empire after the British won the Second Opium War as a 99-year lease; the British installed a thin layer of their own people at the top over an almost entirely Chinese population, but more important than the people were the rules, because the British brought in the common law. Over a long period, he says, that proved vastly superior to communism, and China’s later special economic zones followed because the Chinese looked over the fence at Hong Kong’s prosperity Vote to Float (2020).
On the UAE, Bell describes the Dubai International Financial Centre as a small but important area where London bankers were told they could do their financial work under rules borrowed from England and Wales, with retired English judges in robes and wigs — which he calls a bit of stagecraft but very clever — held out to the world as evidence of how common law oriented the jurisdiction was. Without the common law, he notes, Sharia law forbids interest, and no London banker would be interested in a legal system where interest cannot be charged. He attributes Dubai’s fame and the influx of money and financial expertise to the International Financial Centre, which gave people outside the zone a place to get funding and financing Vote to Float (2020).
Common law and effective government
Zadek’s introduction of Mark Lutter frames the common law as one ingredient of a larger recipe: rule of law, a common law system, the ability to enforce contracts, and honest government, with which economic growth is almost unlimited. The lesson he promises is that libertarians do not simply want less government but effective government, and that without effective government in certain areas economic growth is almost impossible The End of Nation-States? (2018). The excerpt of Lutter’s own remarks breaks off before he speaks, so the episode supplies only the host’s framing.
Across episodes: no development, one recurring contrast
The excerpts do not show the same question being argued to a different conclusion over time; they show a single contrast restated. Walsh (2015) and Silverglate (2022) both oppose common law definitions of crime to modern statutory and federal criminal law, Walsh locating the change in 20th-century expert opinion and Silverglate in the Supreme Court’s interstate commerce doctrine and the New Deal “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015) The FBI: Our Uninvited Federal Police Force (2022). Strong (2017) and Bell (2020) both describe the same Dubai International Financial Centre as common law transplanted into a Sharia-law jurisdiction, Strong emphasizing the 110 acres and the retired judges, Bell the borrowed rules of England and Wales and the stagecraft of robed judges Michael Strong on Creating a World in Which All Humanity Flourishes (2017) Vote to Float (2020). Lutter’s episode (2018) touches the topic only through Zadek’s introduction The End of Nation-States? (2018).
What the sources do not cover
The excerpts do not describe the historical origins of the common law before the Anglo-American development Walsh refers to, nor any case holding on the interstate commerce theory Silverglate criticizes. They do not state the terms of the Honduran legislation beyond Strong’s description, or the outcome of the Hong Kong lease after the 99 years Bell mentions. Nothing in the excerpts reports how the Dubai International Financial Centre is governed today or how the common law jurisdictions there have fared since.