The Question of Conservative Foundations

The natural rights philosophy currently holds pride of place as the basis for conservatism. This book argues for an alternative -- common law -- and does so by exposing the predicament into which the natural-rights philosophy has put us. America's constitutional foundations are examined in terms of the natural rights philosophy in which they were framed, and the inability to restrain government is discovered to be the result. The separation of powers was the fruit of natural-rights philosophy, and has been found wanting. What is needed is a restoration of a truly independent legal order and judiciary, rooted in the common law. The separation of powers has given us a nominal, not a real, independent judiciary.

Some of the issues addressed in Common Law & Natural Rights:

• Russell Kirk's vision of conservatism and how it differs from that of many modern conservatives
• Mark Levin's book, Liberty and Tyranny, and how it exemplifies some of conservatism's shortcomings
• Friedrich Hayek's neglected, masterful critique of contemporary constitutionalism, including the US Constitution
• Friedrich Julius Stahl's anticipation of Hayek's argument
• Charles Howard McIlwain's thematic distinction betweengubernaculum and jurisdictio brought to bear
• Gottfried Dietze's forgotten critique of overbearing democracy
• Michael Oakeshott's analysis of the civil condition
• Herman Dooyeweerd's idea of common law as the product of Rome
• the parallel between Roman and English law
• Alan Macfarlane's origins of English individualism in context
• adjudication versus legislation as the source of law
• the value and failure of American judicial review
• credit and debt as the primary factors in law and economics
• the credit crisis as the latest example of egregious government intervention
• the religious root of the welfare state
• the religious root of the anti-capitalist mentality
• the role of atonement as the basis of the state and capitalism
• Thomas Chalmers on the entitlement mentality
• Edmund Burke on natural rights

Common Law & Natural Rights takes us beyond a simple affirmation of the virtues of self-reliance and the limited state, to the philosophical foundations upon which they must be grounded, so as to make them possible and defensible. It grounds conservatism in the historical reality of received institutions, where conservatism belongs, while maintaining a strong connection to higher law, to which conservatism must always point. Well-intentioned defenders of natural rights owe it to themselves to apprise themselves of this argument.