The Individual Right To Property - Not Flying In The Face Of Common Law
Decentralization Makes For A Freer Society
The world is better because of decentralized emergent systems rather than centralized control. It's better because free markets generate wealth through millions of unplanned interactions instead of heavy-handed economic planning. We should view the legal system through a similar lens.
Imagine a world of legal drones flying across neighbourhoods with incentivized homeowners along those routes getting rents and parcels delivered. Flying cars with families inside, taking off from downtown lots, travelling from city to city in minutes instead of hours.
Yet whenever innovation emerges, the knee-jerk reaction is often: “We need new laws for this!” But do we really?
History and experience show our age-old common law can handle this perfectly, does not require millions of taxpayer dollars, is better and more flexible than any sprawling new regulatory code, and protects our freedoms.
Common law’s evolutionary approach outperforms bureaucratic mismanagement and an ever-thickening rulebook that chokes the future.
The New Frontier
Emerging technologies often provoke calls for brand-new legislation. Unmanned drones, for example, spurred a flurry of proposed drone-specific rules. Flying cars are inching closer to reality, and people are already scrambling to draft laws they think might be right. This impulse comes from a genuine concern as to how we prevent drones and flying cars from wreaking havoc or infringing on our rights? But what we need already exists in common law.
Take the humble legal doctrine of trespass. Under common law, if you intrude on someone’s property without permission, you’re liable. This applies to the air above someone’s land. In the United States, it’s “black-letter law” (a settled legal principle) that landowners own the airspace above their land. The Supreme Court recognized that property isn’t just a two-dimensional concept. If something like a noisy/nosy drone invades the usable air just above your yard, it’s your business, not the government’s.
In legal terms, drone overflights implicate trespass and even takings law. A drone hovering 100 feet over your backyard without consent is as unlawful as your neighbour’s dog traipsing through your garden.
This means that even without a single new “Drone Regulation Act,” you as a property owner already have recourse. If a delivery drone buzzes low over your house, you could sue for trespass or seek an injunction under existing law. Conversely, if a drone company wants access through your airspace, it can pay you. Essentially, rent for a slice of sky.
Any government rule that simply grants drones free rein over private yards is the taking of property and requires just compensation. I don't see a line in any state or federal budget to pay all real estate owners for their air rights to subsidise commercial drone or flying car companies.
Imagine a system where drone operators automatically pay rents to air rights holders as they fly over private land. The mechanisms are technical, but the legal principle is already there.
Crucially, these solutions come from common law principles of property and tort, not legislative. The beauty is that they’re flexible and adaptive. If low flights truly don’t bother anyone and they want to permit them for free, disputes won’t arise, no case, no new rule needed. If they do cause harm, nuisance or trespass, and they don’t make it right, then a court can adjudicate that specific conflict and set a precedent for similar situations. We can innovate in this space, knowing that the law will adapt through practical experience, rather than waiting for clunky legislation that might ban, limit, infringe on our rights, or overly control the technology in one stroke.
Air Taxi Transit
Recently, Archer Aviation, a flying taxi company in partnership with United Airlines, demonstrated how it plans to use its machines across several airports in the New York area. Using the existing helicopter infrastructure and with a one-way flight estimated to be marketed at $200, this flying taxi could be considered a shinier chopper.
Think about these air taxis crisscrossing a city. Rather than having a bureaucracy carve up the sky in advance and taking private property, we lean on automatically negotiated air rights. If a flying car’s route crosses certain buildings at low altitudes, the operator can use a platform such as SkyTrade to contract for those air rights in a voluntary, market-driven approach or face lawsuits if they refuse.
Lawmakers could alternatively create a rigid “Air Traffic Code for Flying Cars.” This would limit the areas they could fly in, would likely require lawmakers to pay private citizens for taking property, and the entire industry would continue its sclerosis. How confident are we that they’ll get it right?
A one-size-fits-all rule might be either so restrictive that it kills the nascent industry or so lax that it tramples on property rights and safety. Common law offers a middle ground.
Often, our current legal toolbox is richer and deeper than we think. Common law has dealt with trains, automobiles, aeroplanes, radios, the internet, and each time, it found analogies or extensions in existing principles. Drones and flying cars are just the latest entrants. Rather than reflexively handing the keys to Congress or regulatory agencies, we might trust age-old doctrines to do their iterative magic.
Decentralization By Design
The decentralized origin is why common law has this bottom-up character. It wasn’t designed by any single mastermind, so it grew like a living organism. Each legal rule in common law began as a solution to a real problem between real people. Did someone breach a contract? Did a mill upstream flood a farm downstream? Did a merchant fail to deliver goods as promised? Each conflict prompted a resolution, and each resolution, if sensible, became a guide for the next similar conflict. Over centuries, English common law built up robust doctrines of property, contract, and tort (civil wrongs) through this iterative, trial-and-error process.
Significantly, it was adopted in America as the foundation of U.S. law when the colonies were established and after independence. Early Americans explicitly chose the English common law tradition because they saw its value as a protector of liberty and order. It was the “wise old teacher” they brought with them, in contrast to continental Europe’s top-down Napoleonic codes.
Common law is not about lofty theories, it’s about what works, it isn’t static or archaic.
When cars were introduced, nobody had a statute ready for automobile accidents. It was the common law of negligence that stepped in. Courts treated cars like any other potentially harmful instrument and developed rules about driver care and liability through actual accident cases. This historical resilience shows common law’s strength. It’s a bottom-up, decentralized learning mechanism that can grow alongside technology, rather than straining to predict the future in advance.
Flexibility Is A Feature, Not A Bug
Different local conditions should invite different rules, and experimentation at small scales leads to better solutions overall. The common law, by its nature, produces a patchwork of legal rules. A combination of localized customs that work for particular communities and more general principles that emerge when something proves universally sound. This patchwork is the optimal outcome in many cases, as it reflects the reality that what makes sense in one context might be overkill or inapplicable in another.
One-size-fits-all is often ill-fitting for many. With legislation, you get uniformity, but at the cost of local wisdom and flexibility. You wouldn’t want the government to mandate one style of clothing for everyone, so why do we assume one uniform law is ideal for every corner of a diverse globe?
In contrast, when Congress or a state legislature preempts an issue with a sweeping law, you lose the benefit of a fix-it-forward approach. The rule is the rule, everywhere, until the law is amended or repealed, which could take decades, if ever. If it turns out to be a bad rule, innovation suffers uniformly. Uniformity is brittle, and iteration beats upfront perfection. Common law is iterative, and legislation pretends to be perfect from the start.
Common Law Learns And Legislation Lags
One argument fans of legislation make is that legislatures can act “proactively”, setting rules before a disaster happens, whereas common law only addresses problems after the fact, like when someone sues after being harmed. In practice, legislation is almost always reactive and often slow. Common law decisions, once made, influence future behaviour just as effectively.
The Titanic disaster famously didn’t have enough lifeboats for all the passengers. The Titanic complied with the lifeboat regulations of its day, which were woefully outdated and not based on passenger count. The regulators hadn’t anticipated a ship of that size, and no law compelled more lifeboats. The tragedy raised inquiries and new rules, but lawsuits made the difference. The Titanic’s operators were hit with negligence claims for the lifeboat shortage, and the company was found negligent. From that day on, every oceangoing steamship made sure to carry sufficient lifeboat capacity for all on board. The common law response corrected the problem before legislators did.
Continuity
Legislation often lags reality, and common law, by contrast, is continuous. It’s true that common law usually needs an incident or conflict to crystallize a new rule, but so do legislators, for the most part. Drones and flying cars are conceptually not new under the sun; they are man-made flying machines.
When politicians try to regulate something new before it’s even fully understood, they often overshoot or mis-calibrate. They may rely on flawed assumptions or lobbying pressures. A dramatic historical illustration is the Red Flag Act in Britain.
In 1865, fearing the disruptive rise of automobiles and under pressure from the stagecoach and railway industries, Parliament passed a law requiring every motorized vehicle to be preceded by a person walking with a red flag to warn pedestrians and horses. It also imposed a walking-pace speed limit of just 2 mph in town. This legislative overreach nearly strangled the car industry in its cradle. Britain fell behind in early auto innovation, as other countries without such draconian rules zoomed ahead. The law was so absurd that it was finally repealed decades later but the damage was done. This is what happens when lawmakers think they’re being proactive but lack real understanding. They often freeze progress under the guise of safety or public interest.
Today’s equivalents might be overly restrictive drone rules or onerous autonomous vehicle regulations set without real-world data. A common law approach, by contrast, would not have led someone in 1865 to dream up the idea of a flag-man rule; it would have let a few cars hit the road, handled any accidents by holding reckless drivers liable, and gradually improved safety norms without outright halting the technology.
It avoids the “ban first, ask questions later” mentality that can kill innovation. We must ask ourselves if we want a legal system that learns and adapts with us, or one that tries and often fails to engineer outcomes from on high.
Putting All Our Faith In Centralized Law-Making Is A Bad Bet.
We might imagine that if we just appoint some really smart officials or a commission to regulate a new technology, they’ll craft perfect rules. Maybe even the creators of the new technology grasp the handles to write the new legislative rules. But this is a fantasy. Even the smartest planners don’t know enough to predict the best way to coordinate millions of people interacting with a new tech. And those lawmakers or regulators are not blank-slate benevolent geniuses; they have their own incentives and interests, which can lead them away from whatever ideal goal we expect. Political incentives often mean catering to loud interest groups, passing something visible rather than something effective, or focusing on the next election rather than the long-term consequences.
“the idea that people who get voted into office on the basis of ideological concerns are going to know better how to coordinate human activity requires a great deal of faith and imagination that I probably don’t have.” - John Hasnas
Common law has its own built-in incentives that align with finding good solutions. The example that has been made is to think of it like open-source software vs. a proprietary system.
Common law is an open-source project, and anyone with a case can contribute, bugs are found and fixed for bounties, and no single entity controls it. Add a block and you can see the data. Legislation is a closed-source code written by a committee. It might work out of the box, but if there’s a bug or unforeseen interaction, you have to wait for a patch if one ever comes.
Common law is much harder for any one company or industry to capture. Amazon or Walmart can’t lobby Judge Smith to preemptively declare all neighbourhood drone flights legal. This uncertainty might seem scary, but it actually prevents a single big player from writing the rules in their favour.
Legislation, by contrast, is an open invitation for lobbyists. Walmart and Amazon have spent millions trying to get common law property laws regarding citizens air rights changed, but the safety valve of the common law prevents this. Regulations get written with heavy input from the largest stakeholders, which can lead to rules that entrench the current winners and raise barriers to entry for upstarts. A sprawling new drone regulatory scheme could be co-authored by the biggest drone manufacturers and commercial operators, tilting the field against property rights and innovators without a common law framework. Just look at Europe and where value is captured.
The “Ancient” Law of the Future
Common law is the free market of legal ideas. It is a competitive process where different solutions are tried, and the fittest rule for the situation survives. Legislation, in contrast, is a form of central planning, sometimes necessary, but often prone to the same failures as any central planning, which is a knowledge problem, a lack of feedback, rigidity, and susceptibility to special interests.
Over-regulation and ceaseless new laws create a climate of permission, permits, and prohibitions, where only the biggest players can manoeuvre. Common law offers a legal environment that is stable yet flexible, protecting rights without dictating methods, and evolving as new challenges arise. It’s the legal equivalent of a lean startup built on the blockchain, that launches, learns, and iterates, versus a waterfall model of legal code set in stone.
The common law, with its centuries of hard-won wisdom and its proven adaptability, is the unsung hero that ensures our drones and flying cars can take off, and our freedom is protected.