The common law depends upon experience (scientific evidence), not logic or reason (untested theory), and is relatively impervious to authoritarian influence.
In any reading list on Law, I don’t necessarily want to communicate the history of law, so much as emphasize the pervasive problems of the social cognitive biases: a) False Consensus bias, b) the Illusion of Asymmetric Insight, c) Projection Bias, d) Trait Ascription Bias, e) the Illusion of Transparency, that are largely the product of the introduction of women into the voting pool, and their alliance with, and support of, marginal male groups who can obtain power by the use of the near universalism of these female cognitive biases, because these cognitive biases suit the reproductive strategies of females in our prehistoric, pre-agrarian phase of development.
1) Bastiat’s The Law
2) Epstein’s Simple Rules For A Complex World
3) Hayek’s The Constitution of Liberty (as well as Hayek and Popper on knowledge)
4) Oliver Wendell Holmes’ The Common Law
4) Milsen’s A Natural History of The Common Law
CLUES TO ADAPTING TO THE 21ST CENTURY
1) Jonathan Haidt’s The Righteous Mind (Believe it or not), my interpretation of Johnson’s Three Methods Of Coercion (see my site), and Perhaps Arnold’ Kling’s pamphlet “The Tree Languages Of Politics”. In particular I love kling’s metaphors both in the Three Languages, and in his “Recalculation” description of recessions. These are both accurate categorical descriptions but they are not sufficiently causally descriptions. Haidt solves the problem of the three languages. I think in my works I’ve sufficiently combined these different perspectives and using Haidt and property rights, I’ve unified these systems into causal relations. (Which new, and is why people have trouble understanding what I’m trying to get across at present.)
2/2) I want to add here Rothbard’s Ethics of Private Property. But since his moral code is incomplete (and therefore false), and his definition of property incomplete, because he was creating an ethic of rebellion not one of civilization, I’ll just have to wait until I finish my own work on propertarianism which corrects those errors. Without this understanding of the relationship between group size (individualism), reproductive strategy, morality, and property it is impossible to adapt the common law to the complex heterogeneous society, because it relies, at least in the arguments of Melvin Eisenberg and perhaps Holmes, relies on assumptions about society, and norms that cannot survive moral scrutiny in our heterogeneous social order.
3) Epstein’s How the Progressives Rewrote the Constitution. The canonical history of how the feminist, progressive, liberal, socialist, and communist movement was able to effectively destroy the rule of law under the constitution.
4) Barnett’s Restoring The Lost Constitution (I don’t believe that this is possible or advisable, and instead that we must create an institutional framework that supports a diversity of genetic strategies. But his analysis of what the constitution actually said, is exceptional, and therefore it is a prescription for how to articulate the rules of future institutions.)
I don’t really want to spend a lot of my time with the law. I always feel that I’m slumming and need a shower afterward. But as an institution that we both require for calculative purposes, and an institution that must adapt to contemporary diversity and heterogeneity by expanding the concepts of morality and property. To do so, it’s necessary to articulate the impact on the system of common law, which shall remain the means of contract-making and dispute resolution under any more diverse propertarian model.
FALURE OF CALCULATIVE INSTITUTIONS TO FACILITATE DIVERSITY OF INTERESTS, AND THEREFORE INCENTIVES AND CALCULATION
Civilizations fail because their institutions can no longer calculate cooperation and the user of resources. (ie: Jarred Diamond is wrong. and I’m not so sure about Fukuyama’s and Acemoglu’s analyses have identified this problem correctly as one of property rights.)
For more detail see Kinsella’s excellent list at mises.org which also addresses the historical development of the common law. In particular Tulluck’s criticism of the method of dispute resolution. A criticism I think is solved by Hoppe’s privatization and insurance model.
Hopefully this was helpful to others.