Common law as evolved, decentralized law
In a discussion of overcriminalization, Brian Walsh described the Anglo-American common law as the product of roughly five hundred years or more of development by the time of the American founding, carrying presumptions that criminal law should be reserved for heinous, inherently wrongful conduct and that punishment should require criminal intent. Bob Zadek framed the significance of common law in evolutionary terms: rules developed over time through the experience of people living together, not enacted by a legislator with a worldview, and therefore “highly small-d democratic” in representing what human beings have learned about interacting. On this account the common law is the starting point because it results from everyone operating in good faith over a long period. “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015)
Walsh added that the Constitution was adopted in the context of the existing common law rather than created out of nothing, so that terms such as trial and jury did not need definition — and neither did crime, which required a wrongful act and a guilty mind. He said that in the twentieth century this theory came under scrutiny as experts began to see criminal law as a way of controlling and shaping behavior, and began to treat it as a handy tool for promoting socioeconomic ends. The idea of the guilty mind became less important, especially at the federal level, and experimentation with criminalizing economic and social conduct followed. Walsh named the Heritage Foundation, the National Association of Criminal Defense Lawyers, and the Ethics and Public Policy Center as organizations working on Capitol Hill to reinstate those principles. “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015)
Common law and federal criminal jurisdiction
Harvey Silverglate, discussing the FBI, said that with the exception of Louisiana the states all operate under the English common law system, in which the definition of crimes such as larceny, assault and battery has been fixed by hundreds and hundreds of years of judicial decisions and legal precedents. He contrasted this with mail fraud, which he called a vague notion of a fraud committed by the use of the mails, and observed that because the interview itself used means of interstate communication, the feds have control of what is said. The FBI: Our Uninvited Federal Police Force (2022)
Silverglate said the U.S. Supreme Court could have stopped the growth of federal criminal jurisdiction but enabled it, buying into the notion that use of the means of interstate commerce or interstate communication converts what would otherwise be a classic common law crime into a federal crime. He pointed to the New Deal and the Depression as enlarging the scope of federal jurisdiction, and said the Court allowed that theory to operate in the criminal justice system, which he called a tremendous threat to American liberty. The common law notion, he said, is that a person can be prosecuted and punished for knowingly violating a clear obligation; now, he said, a person can get 10, 15, or 20 years in federal prison for conduct a prosecutor can convince a judge is fraud, as long as the telephone, interstate communication, or the mails are used. He described the common law as what ordinary people understand a crime to be — you don’t punch someone in the nose, you don’t steal what’s not yours — and said it is dangerous to liberty when government can pick off people who might be critics, noting he had himself been investigated as a high-profile civil liberties and criminal defense lawyer. The FBI: Our Uninvited Federal Police Force (2022)
Common law as an exportable legal technology
Michael Strong, discussing governance innovation, described the Dubai International Financial Centre as taking 110 acres of land and putting British common law on it, while the rest of Dubai and the UAE is under Sharia law, which he said is terrible for finance because it does not permit charging interest. He said the rulers of Dubai looked at the world’s leading financial centers — London, New York, Chicago, Sydney, Hong Kong, Singapore — observed that all 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 said, Dubai is now a top 20 financial center. Michael Strong on Creating a World in Which All Humanity Flourishes (2017)
Strong also said Honduras passed legislation a few years earlier allowing jurisdictions similar to the Dubai International Financial Centre, with common law and free markets within Honduras, and expressed hope this would create pockets of prosperity and reduce the need for Hondurans to leave for the US. He described Hong Kong and Singapore as poor in 1960 and now two of the richest jurisdictions on earth, former British colonies richer than Britain. He said the brightest hope lies in new jurisdictions based on common law, and that if many developing countries experimented with common law jurisdictions and special economic zones designed for entrepreneurial capitalism, poverty could disappear more rapidly than ever before in world history. Michael Strong on Creating a World in Which All Humanity Flourishes (2017)
Tom W. Bell, discussing zones, called Hong Kong and the UAE examples of special jurisdictions that use the common law. He said Hong Kong was not the best example in terms of formation because it was forced on the Chinese after the British won the Second Opium War, with the Qing Empire essentially giving a 99-year lease, and that the British installed a thin layer of their people at the top but that the rules mattered more — the British brought in the common law. Bell said that over a long period this proved vastly superior to communism, and that China implemented special economic zones throughout its territory because it looked over the fence at Hong Kong and wanted the money, adopting some of Hong Kong’s rules in the rest of China with huge success. Vote to Float (2020)
On the UAE, Bell said it is a collection of emirates, little kingdoms, that got together in a federation and long coasted on oil revenues before realizing they needed another economic basis. In Dubai they implemented the Dubai International Financial Centre, where they told London bankers they could do their financial work under rules borrowed from England and Wales, and hired retired English judges with robes and wigs — which Bell called a bit of stagecraft but very clever. Without the common law, he said, they have Sharia law, which basically forbids interest, and you would not get a London banker interested in a legal system where you cannot charge interest. He said the centre has been a huge success and brought a massive influx of money and financial expertise, giving people outside the zone a place to get funding and financing. Vote to Float (2020)
Common law and the case for effective government
Introducing Mark Lutter, Bob Zadek described Lutter as proposing and educating people on the economic benefits of rule of law, a common law system, the ability to enforce contracts, and honest government, saying that with those modest ingredients economic growth is almost unlimited. Zadek argued that libertarians do not simply want less government but effective government, and that without effective government in certain areas economic growth is almost impossible. He said Lutter would explain miracles in the Far East and in China that could not have taken place without the creation of free cities. The End of Nation-States? (2018)
Across episodes: a consistent theme, not a developing argument
Common law appears across these episodes as a recurring premise rather than a question argued and revised over time. Walsh (2015) supplies the historical account of common-law presumptions and their twentieth-century erosion; Silverglate (2022) applies the same contrast between common-law definitions and vague federal statutes to the FBI and federal criminal jurisdiction; Strong (2017) and Bell (2020) both treat common law as an exportable legal technology in Dubai and Hong Kong, with Bell adding the detail of retired English judges and the 99-year lease; and Zadek’s introduction of Lutter (2018) restates the rule-of-law-and-common-law formula as the precondition of growth. The excerpts show no development or disagreement among the guests on what common law is or why it matters.
What the sources do not cover
The excerpts do not describe the historical origins of the common law before the Anglo-American period, nor do they name the specific statutes, bills, or court decisions that expanded federal criminal jurisdiction beyond Silverglate’s general reference to the New Deal era and Supreme Court acquiescence. They do not state the outcome of any case, the amendment on which any case turned, or the current legal status of the Honduran zones Strong mentions. The excerpts also do not address how common law interacts with statutory or regulatory law in areas outside crime and finance, and several passages break off mid-sentence or mid-exchange, leaving those threads unresolved.