Crosswell on The Common Law and the Wealth of Nations @bakermckenzie

Stephen Crosswell, Baker McKenzie, has published The common law and Adam Smith's Wealth of Nations. Here is the abstract.

Understanding the relative effectiveness of common law and legislation led systems is plainly relevant as the UK unshackles itself from the regulatory system of the European Union and as discussions take place on Hong Kong’s future as a common law jurisdiction to service China’s financial markets and international trade. However, there are much bigger shifts in the world that move this issue to a level of fundamental importance. Adam Smith developed a theory of the ‘four-stage’ advancement of society - from hunter-gatherer to herder, then agricultural and finally commercial society. He developed this theory at a time when England had substantially transitioned out of the agricultural stage, through what became known as the Agricultural Revolution, into its role as the seat of the Industrial Revolution and the leading commercial centre in the world. He, and other jurists of the time, saw the debate about whether legislation could effectively drive that transition as the central question of their time, the answer to which would, in the long run, affect the fate of nations and Empire. They had a clear view on this, informed by the study of thousands of years of human history. For them, the common law was vastly superior. This article examines the debate that took place on these issues at the time that England was going through the Industrial Revolution, the Benthamite revolution that followed and the modern basket of rights that obfuscate the key question that policy-makers should be asking: if the common law was so successful in driving the Industrial Revolution, what confidence can we have in a legislated approach to the Technology Revolution?

Download the article from SSRN at the link.