http://lsolum.typepad.com/legal_theory_lexicon/2005/06/legal_theory_le.html
*Legal Theory Lexicon 048: Libertarian Theories of Law*
*Introduction*
The dominant approaches to normative legal theory in the American
legal academy converge on fairly robust role for the state and
government subject to the constraints imposed by an equally robust
set of individual rights. Normative legal theorists of all
stripes--conservatives and liberals, welfarists and
deontologiststend to agree that the institution of law is
fundamentally legitimate and that the legal regulation has a large
role to play. There is, however, a counter-tradition in legal
theory that challenges the legitimacy of law and contends that the
role of law should be narrowly confined. This entry in the /Legal
Theory Lexicon/ will examine libertarian theories of law. As
always, the /Lexicon/ is aimed at law studentsespecially first
year law studentswith an interest in legal theory.
The /libertarian/ tradition of social, political, and legal
thought is rich and varied, no brief summary can do it justice. So
the usual caveats apply. This is a brief introduction to
libertarian thought with an emphasis on its role in normative
legal theory. Debates about the /true/ meaning of the term
"libertarian" will largely be ignored, and will disputes over the
advantages of "liberalism," "classical liberalism," and
"libertarianism" as the best label for libertarian ideas. /Enough
with the caveats, here we go!
/ *Historical Roots of Contemporary Libertarianism*
One good way to approach contemporary libertarian legal theory is
/via/ its historical roots. A good place to begin is with John
Locke's conception of the social contract.
*John Locke and the Social Contract*
The idea of a "social contract," by which individuals in a
state of nature contract with each other (or with a
sovereign) to enter a "civil society" is one of the most
important in all of political philosophy. Hobbes, Rousseau,
and Locke all have distinctive theories of the social
contract, but Locke's version has been especially
salientboth to libertarian theory and American
constitutionalism. For the purposes of this discussion, the
crucial point is that a legitimate (or perhaps just) civil
society has authority that is limited to those powers that
the citizens-to-be would agree to delegate to the government
in a social contract. Locke himself argued that the
inconveniences of the state of nature would motivate a
social contract that delegated to the government the power
to protect propertyunderstood in a broad sense that
encompasses personal security and liberty and the power to
resolve disputes. But the Lockean social contract would not
authorize government to restrict fundamental liberties or to
take property from one citizen and transfer it to another.
/Of course, there is much more to say about Locke, but we
are concerned here only with getting the gist of those
Lockean ideas that are historically important to libertarian
theory./
*Kant and Spheres of Autonomy*
Kant also made an important contribution to libertarian
theory /via/ his ideas of autonomy. There is no good way to
summarize Kant's theory of autonomy in a sentence or two,
but the gist of his notion is the humans, as rational
beings, have an interest in being autonomous in the sense of
"self governing." The role of law is to protect individual
"spheres of autonomy" or "zones of liberty" in which
individuals can act without interference from others.
Suppose then, that our theory of proper legislation was that
the laws should create maximum equal liberties for each,
consistent with the same liberty for all. These two Kantian
ideas -- autonomy and maximum equal liberty -- have
played an important role in libertarian thinking about law.
*John Stuart Mill and the Harm Principle*
John Stuart Mill was a liberal utilitarian, and so, in a
sense, it is odd that he is also the author of one of the
most important works in the libertarian tradition, /On
Liberty/, a rich, complex, and easily misunderstood work. I
am afraid I may be contributing to the misunderstanding by
emphasizing just one idea from /On Liberty/--the so-called
"harm principle." Here is how Mill states the principle:
. . . the sole end for which mankind are warranted,
individually or collectively, in interfering with the
liberty of action of any of their number, is
self-protection. That the only purpose for which power
can be rightfully exercised over any member of a
civilised community, against his will, is to prevent
harm to others. His own good, either physical or
moral, is not sufficient warrant. He cannot rightfully
be compelled to do or forbear because it will be
better for him to do so, because it will make him
happier, because, in the opinion of others, to do so
would be wise, or even right...The only part of the
conduct of anyone, for which he is amenable to
society, is that which concerns others. In the part
which merely concerns himself, his independence is, of
right, absolute. Over himself, over his own body and
mind, the individual is sovereign.
The harm principle is almost as controversial as it famous.
In particular, there is a persistent worry about the problem
of the /baseline/ against which "harm" as opposed to "lack
of advantage" might be measured.
Locke, Kant, and Mill are not the only historical
influences--there is, for example, a rich tradition of
anarchist thought. Another figure worth mentioning Herbert
Spencer, whose " Social Statics
<http://oll.libertyfund.org/Texts/LFBooks/Spencer0236/SocialStatics/0331_Bk.html>"
famously drew Justice Holmes's fire in the famous Lochner
dissent.
*Theoretical Foundations of Libertarianism*
This very brief introduction to the historical roots of
/libertarianism/ in Locke, Kant, and Mill prepares the way for a
discussion of the theoretical roots of libertarian legal theory.
Libertarianism operates at the level of political theory: it is a
view about questions like "What is the proper role of government?"
and "When is coercive legislation legitimate?" Theories at this
level of abstraction need foundations of some sort, either deep
foundations in comprehensive moral theories like utilitarianism or
shallow foundations that explain why deeper foundations are
unnecessary. Let's take a look at both sorts of foundations for
libertarian legal theories.
*Consequentialist Foundations*
The consequentialist case for libertarianism is
contingentit depends on empirical and theoretical questions
about the effects that various legal regimes have.
Consequentialist libertarians believe that minimum
government interference with individual liberty and free
markets produces better consequences that extensive
government regulation or redistribution of income.
Historically, both John Stuart Mill and Adam Smith are
associated with both libertarianism and consequentialism.
There are many different flavors of consequentialism, but in
the legal academy, the most prominent strands of
consequentialist thinking are associated with law and
economics and assume a preference-satisfaction (or
"welfarist") notion of utility. Even among theorists who
accept welfarism, there are major disagreements about how
much and when government should regulate. But the general
idea behind the consequentialist case for libertarianism is
that markets are more efficient than regulation. This
conclusion follows from fairly straightforward ideas in
neoclassical microeconomics. Markets facilitate
Pareto-efficient (welfare enhancing) transactions;
regulations thwart such transactions.
Markets may lead to substantial disparities in wealth and
income, but from the consequentialist perspective, such
inequalities may not justify legislation that redistributes
wealth and income. First, for a strict utilitarian, the
distribution of utility itself is of no moral significance:
classical utilitarians believe that the sum of utilities
should be maximized, even if that means that some will be
very well off and others very poor. Of course, there is a
well-known utilitarian argument for the redistribution of
wealth and income based on the idea of diminishing marginal
utility, but this argument might be outweighed by the
massive utility losses caused by redistributive
programsproviding a utilitarian argument against
government-mandated redistribution of wealth and income.
Second, even consequentialists who believe in some form of
egalitarianism might believe that the worst off members of
society will be better served by a libertarian regime than
by a social-welfare state. We are already on a tangent, so
I'm going to leave the topic of redistribution -- noting
that this is an issue upon which consequentialists
themselves many differ in a variety of ways.
In contemporary legal theory, Richard Epstein is the
"libertarian" thinker who is most strongly associated with
consequentialist foundations. Because he is a
consequentialist, Epstein may not be a /pure/ libertarian,
but on a variety of issues (e.g. antidiscrimination laws),
Epstein takes strongly libertarian positions.
*Deontological Foundations*
Although some libertarians are consequentialists, many
others look to deontological moral theory for the
foundations of their libertarianism. There are many
different strategies for arguing for libertarianism based on
deontological premises. One method starts with the idea of
self-ownership or autonomy. Each of us has a moral right to
control our own bodies, free of wrongful interference by
others. This might imply that each individual has a right
against theft, battery, false-imprisonment, enslavement, and
so forth. Of course, these rights might justify a certain
kind of governmentone that protects us against invasions of
our rights. But when government goes beyond the protection
of these rights, then government itself operates through
force or threats of force. For example, the redistribution
of income might be accomplished by taxing income to finance
a welfare system. Taxes are not voluntary; tax payments are
"coerced" /via/ threats of violence and imprisonment.
Without consent, it might be argued, these threats are
wrongful actions.
In my mind, the deontological approach to the foundations of
libertarian political theory is most strongly associated
with the late Robert Nozick and his magnificent book,
/Anarchy, State, and Utopia/ (see reference below).
*Pluralist Foundations*
There is an obvious problem with locating the foundations of
a political theory, like libertarianism, in a deeper moral
theory, such as some form of deontology or consequentialism.
In a pluralist society, it seems very unlikely that any one
view about morality will ever become the dominant view.
Instead, modern pluralist societies are usually
characterized by persistent disagreements about deep moral
questions. If a particular form of libertarianism rests on
deep moral foundations, then most of us will reject that
form of libertarianism, because we reject the foundations.
One alternative would be to try to argue for libertarianism
on the basis of all of the different moral theories, but
that would obviously be a very time-consuming and difficult
task. Another approach would be to articulate shallow
foundations for libertarianism -- foundations that are
"modular" in the sense that they could be incorporated into
many different comprehensive theories of morality. This
general strategy was pioneered by the liberal political
philosopher, John Rawlshimself, of course, no libertarian.
One contemporary libertarian legal theorist who has pursued
the pluralist strategy is Randy Barnett. In his book, /The
Structure of Liberty/, Barnett argues that anyone who wishes
to pursue their own interestswhatever those might be-- has
good reasons to affirm a generally libertarian framework for
government. Barnett's case for libertarianism is complex,
but his basic idea is that human nature and circumstances
are such that the law must establish and protect property
rights and liberty of contract. The key to Barnett's
argument is his identification of what he calls the problems
of knowledge, interest, and power. For example, the problems
of knowledge include the fact that each individual has
knowledge of his or her circumstances that are relevant to
how resources can best be utilized. This fact, combined with
others, make decentralized control of resources through a
private property regime superior to a centralized command
and control system. /For our purposes, it is not the details
for Barnett's argument, but his general strategy that is
important: Barnett attempts to create a case for
libertarianism that does not depend on either
consequentialist or deontological moral theory.
/ *Libertarian Agendas for Legal Reform (or Revolution!)*
Even thought this is "Legal _Theory_ Blog," we should say
something about the practical agendas of various libertarian legal
theories. Let's begin with modest libertarianism and proceed to
its most radical (/anarchist/) forms.
*Modest Libertarian Reforms: Deregulation, Privatization,
and Legalization*
At the very least, libertarians favor /less/ governmentas
measured against the baseline of the current legal order in
the United States. So, libertarians are likely to be in
favor of more reliance on markets and less reliance on
government. Hence, libertarians are likely to support
programs of deregulation and privatization. Deregulation
might include measures like abolition of consumer product
safety regulations and the elimination of rent control laws.
Privatization might include the federal government selling
off the national park system or the Tennessee Valley Authority.
A libertarian reform agenda might also include the
legalization of various forms of conduct that are currently
prohibited. Examples of this kind of reform might include
the legalization of recreational drugs, the end of
prohibitions on various consensual sexual activities, and
the elimination of restrictions on gambling and prostitution.
*Comprehensive Libertarian Reform: The Night-Watchman State*
A more ambitious libertarian agenda might be the
establishment of what has been called the /night-watchman
state/. The idea is that government would limit its role to
the protection of individual liberty. Government would
continue to provide police protection, national defense, and
a court system for the vindication of private rights
(property, tort, and contract rights, for example), but
nothing else. In other words, the function of law would be
limited to those activities that are necessary for the
protection of private property and liberty.
The difference between the advocacy of modest and
comprehensive libertarian reform may be more a matter of
tactics than of principle. One might believe that there is
no realistic chance of a transition to a night-watchman
state. Those who advocate such comprehensive reform may
undermine their own political effectiveness by sounding
"radical." So as a matter of practical politics, it may be
that libertarians are most effective when they advocate
marginal reforms that move the system incremental in
libertarian directions.
*Libertarian Revolutions: Anarchy and Polycentric
Constitutional Orders*
Some libertarians advocate an agenda that is even more
radical than the night-watchman state. One might question
whether there is a need for the nation state at all. One
version of this more radical approach is pure anarchismthe
view that no government is necessary because individuals can
coexist and cooperate without any need for state action.
Another variation of this idea is sometimes called a
"polycentric constitutional order." The idea is that
individuals could subscribe to "competitive legal systems
and law enforcement agencies" that would provide the police
and adjudication functions of the night watchman state. Such
a society would have entities that functioned like
governments in some wayswith the important exception that
individuals would enter into voluntary agreements for their
services.
*The Rivals of Libertarian Legal Theory*
Libertarian theory can be criticized in a variety of ways.
Sometimes the disagreement is mostly empirical: libertarians
believe that life without the state would be better, and
anti-libertarians believe it would be worse. But sometimes the
critics of libertarianism have a radically different vision of the
fundamental purposes of government. One such rival is
egalitarianism -- the view the distributive justice requires that
goods (let's leave the definition of good at the abstract level)
should be divided equally, and that the creation of social
equality is the primary aim of government. Some libertarians might
accept this goal, but argue that maximum liberty is the best way
to achieve it. Other libertarians might argue that /liberty/ is
the good that should be equally divided. But many libertarians see
equality as the wrong goal for government. That is, sometimes
libertarians and egalitarians differ fundamentally over the
purpose of government.
Another rival to libertarianism is the view that legislation
should aim at the promotion of virtue in the citizenry. If one
believes that the aim of government is to make humans into better
people, then one is likely to see a variety of restricts of
liberty as justified. (Let's call views that see virtue as the end
of government "aretaic political theories.")
Aretaic political theorists are likely to disagree with
libertarians over what might be called "moral legislation." For
instance, one might believe that legal prohibitions on gambling,
drugs, and prostitution are justified because they help promote a
moral climate where most citizens don't want to engage in these
activities. Many libertarians would say it is simply not the
business of government to decide that a taste for gambling is a
bad thing; whereas many virtue theorists are likely to say that
this is precisely the sort of work that governments should be doing.
*Conclusion*
Libertarian legal theory is interesting on the meritsas one of
the most significant normative theories of law. But there is
another important reason for legal theorists to be interested in
libertarianism even if they ultimately reject it. Libertarian
legal theories call into question the very purpose of law and
government. A really careful evaluation of libertarianism requires
that one form views about the function of law and the purposes of
government, and to confront a variety of criticisms of
conventional views about those topics. For that reason, thinking
about libertarian legal theory is an excellent way of thinking
about the most fundamental questions in normative legal theory.
Once again, this entry is bit too long, but I hope that I've
provide a good starting point for your investigations of
libertarianism. I've provided a very brief set of references for
further exploration.
*References
*
Randy E. Barnett, The Structure of Liberty: Justice and the
Rule of Law
<http://lsolum.typepad.com/legal_theory_lexicon/2005/06/%E2%80%9D>
(Oxford: Oxford University Press, 1998).
Richard A. Epstein, Skepticism and Freedom : A Modern Case
for Classical Liberalism
<http://lsolum.typepad.com/legal_theory_lexicon/2005/06/%E2%80%9Dhttp://www.amazon.com/exec/obidos/tg/detail/-/0226213048/ref=pd_sbs_b_1/104-4236392-1467918?%5Fencoding=UTF8&v=glance%E2%80%9D>
(Chicago: University of Chicago Press, 2003).
Robert Nozick, Anarchy State and Utopia
<http://lsolum.typepad.com/legal_theory_lexicon/2005/06/%E2%80%9Dhttp://www.amazon.com/exec/obidos/tg/detail/-/0465097200/qid=1119832892/sr=8-1/ref=sr_8_xs_ap_i1_xgl14/104-4236392-1467918?v=glance&s=books&n=507846%E2%80%9D>
(New York: Basic Books, 1977).
TrackBack URL for this entry: http://www.typepad.com/t/trackback/5420805
*Comments*
to this entry are closed.
*Lexicon Table of Contents*
* Legal Theory Lexicon 001: Ex Ante/Ex Post
<http://lsolum.typepad.com/legal_theory_lexicon/2003/09/legal_theory_le_2.html>
* Legal Theory Lexicon 002: The Coase Theorem
<http://lsolum.typepad.com/legal_theory_lexicon/2003/09/legal_theory_le_1.html>
* Legal Theory Lexicon 003: Hypotheticals
<http://lsolum.typepad.com/legal_theory_lexicon/2003/09/legal_theory_le.html>
* Legal Theory Lexicon 004: The Reasonable Person
<http://lsolum.typepad.com/legal_theory_lexicon/2003/10/legal_theory_le_3.html>
* Legal Theory Lexicon 005: Holdings
<http://lsolum.typepad.com/legal_theory_lexicon/2003/10/legal_theory_le_2.html>
* Legal Theory Lexicon 006: The Veil of Ignorance
<http://lsolum.typepad.com/legal_theory_lexicon/2003/10/legal_theory_le_1.html>
* Legal Theory Lexicon 007: The Prisoners' Dilemma
<http://lsolum.typepad.com/legal_theory_lexicon/2003/10/legal_theory_le.html>
* Legal Theory Lexicon 008: Utilitarianism
<http://lsolum.typepad.com/legal_theory_lexicon/2003/11/legal_theory_le_4.html>
* Legal Theory Lexicon 009: Public Reason
<http://lsolum.typepad.com/legal_theory_lexicon/2003/11/legal_theory_le_3.html>
* Legal Theory Lexicon 010: Deontology
<http://lsolum.typepad.com/legal_theory_lexicon/2003/11/legal_theory_le_2.html>
* Legal Theory Lexicon 011: Second Best
<http://lsolum.typepad.com/legal_theory_lexicon/2003/11/legal_theory_le_1.html>
* Legal Theory Lexicon 012: Virtue Ethics
<http://lsolum.typepad.com/legal_theory_lexicon/2003/11/legal_theory_le.html>
* Legal Theory Lexicon 013: Conduct Rules and Decision Rules
<http://lsolum.typepad.com/legal_theory_lexicon/2003/12/legal_theory_le_3.html>
* Legal Theory Lexicon 014: Fact and Value
<http://lsolum.typepad.com/legal_theory_lexicon/2003/12/legal_theory_le_2.html>
* Legal Theory Lexicon 015: Transparency
<http://lsolum.typepad.com/legal_theory_lexicon/2003/12/legal_theory_le_1.html>
* Legal Theory Lexicon 016: Positive and Normative Legal Theory
<http://lsolum.typepad.com/legal_theory_lexicon/2003/12/legal_theory_le.html>
* Legal Theory Lexicon 017: The Rule of Law
<http://lsolum.typepad.com/legal_theory_lexicon/2004/01/legal_theory_le_3.html>
* Legal Theory Lexicon 018: Justice
<http://lsolum.typepad.com/legal_theory_lexicon/2004/01/legal_theory_le_2.html>
* Legal Theory Lexicon 019: Originalism
<http://lsolum.typepad.com/legal_theory_lexicon/2004/01/legal_theory_le_1.html>
* Legal Theory Lexicon 020: Causation
<http://lsolum.typepad.com/legal_theory_lexicon/2004/01/legal_theory_le.html>
* Legal Theory Lexicon 021: Speech Acts
<http://lsolum.typepad.com/legal_theory_lexicon/2004/02/legal_theory_le_4.html>
* Legal Theory Lexicon 022: Intention
<http://lsolum.typepad.com/legal_theory_lexicon/2004/02/legal_theory_le_3.html>
* Legal Theory Lexicon 023: Procedural Justice
<http://lsolum.typepad.com/legal_theory_lexicon/2004/02/legal_theory_le_2.html>
* Legal Theory Lexicon 024: Balancing Tests
<http://lsolum.typepad.com/legal_theory_lexicon/2004/02/legal_theory_le_1.html>
* Legal Theory Lexicon 025: Social Welfare Functions
<http://lsolum.typepad.com/legal_theory_lexicon/2004/02/legal_theory_le.html>
* Legal Theory Lexicon 026: Rules, Standards, and Principles
<http://lsolum.typepad.com/legal_theory_lexicon/2004/03/legal_theory_le_3.html>
* Legal Theory Lexicon 027: Personhood
<http://lsolum.typepad.com/legal_theory_lexicon/2004/03/legal_theory_le_2.html>
* Legal Theory Lexicon 028: Concepts and Conceptions
<http://lsolum.typepad.com/legal_theory_lexicon/2004/03/legal_theory_le_1.html>
* Legal Theory Lexicon 029: Public and Private Goods
<http://lsolum.typepad.com/legal_theory_lexicon/2004/03/legal_theory_le.html>
* Legal Theory Lexicon 030: Textualism
<http://lsolum.typepad.com/legal_theory_lexicon/2004/04/legal_theory_le_3.html>
* Legal Theory Lexicon 031: Virtue Jurisprudence
<http://lsolum.typepad.com/legal_theory_lexicon/2004/04/legal_theory_le_2.html>
* Legal Theory Lexicon 032: Fit and Justification
<http://lsolum.typepad.com/legal_theory_lexicon/2004/04/legal_theory_le_1.html>
* Legal Theory Lexicon 033: Holism
<http://lsolum.typepad.com/legal_theory_lexicon/2004/04/legal_theory_le.html>
* Legal Theory Lexicon 034: Hohfeld
<http://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le_4.html>
* Legal Theory Lexicon 035: Strict Construction and Judicial
Activism
<http://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le_3.html>
* Legal Theory Lexicon 036: Indeterminacy
<http://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le_2.html>
* Legal Theory Lexicon 037: Overlapping Consensus & Incompletely
Theorized Agreements
<http://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le_1.html>
* Legal Theory Lexicon 038: The Internal Point of View
<http://lsolum.typepad.com/legal_theory_lexicon/2004/05/legal_theory_le.html>
* Legal Theory Lexicon 039: Primary and Secondary Rules
<http://lsolum.typepad.com/legal_theory_lexicon/2004/06/legal_theory_le_2.html>
* Legal Theory Lexicon 040: Functional Explanation in Legal Theory
<http://lsolum.typepad.com/legal_theory_lexicon/2004/06/legal_theory_le_1.html>
* Legal Theory Lexicon 041: Metaethics
<http://lsolum.typepad.com/legal_theory_lexicon/2004/06/legal_theory_le.html>
* Legal Theory Lexicon 042: Consent
<http://lsolum.typepad.com/legal_theory_lexicon/2004/11/legal_theory_le.html>
* Legal Theory Lexicon 043: Formalism and Instrumentalism
<http://lsolum.typepad.com/legal_theory_lexicon/2005/05/legal_theory_le_1.html>
* Legal Theory Lexicon 044: Legal Theory, Jurisprudence, and the
Philosophy of Law
<http://lsolum.typepad.com/legal_theory_lexicon/2005/05/legal_theory_le.html>
* Legal Theory Lexicon 045: The Attitudinal Model and the New
Institutionalism
<http://lsolum.typepad.com/legal_theory_lexicon/2005/06/legal_theory_le_3.html>
* Legal Theory Lexicon 046: Legitimacy
<http://lsolum.typepad.com/legal_theory_lexicon/2005/06/legal_theory_le_2.html>
* Legal Theory Lexicon 047: The Counter-Majoritarian Difficulty
<http://lsolum.typepad.com/legal_theory_lexicon/2005/06/legal_theory_le_1.html>
* Legal Theory Lexicon 048: Libertarian Theories of Law
<http://lsolum.typepad.com/legal_theory_lexicon/2005/06/legal_theory_le.html>
* Legal Theory Lexicon 049: Distributive Jus
<http://lsolum.typepad.com/legal_theory_lexicon/2005/07/legal_theory_le.html>
[Non-text portions of this message have been removed]
------------------------ Yahoo! Groups Sponsor --------------------~-->
Yahoo! Groups gets a make over. See the new email design.
http://us.click.yahoo.com/XISQkA/lOaOAA/yQLSAA/KlSolB/TM
--------------------------------------------------------------------~->
ForumWebSiteAt http://groups.yahoo.com/group/Libertarian
Yahoo! Groups Links
<*> To visit your group on the web, go to:
http://groups.yahoo.com/group/Libertarian/
<*> To unsubscribe from this group, send an email to:
[EMAIL PROTECTED]
<*> Your use of Yahoo! Groups is subject to:
http://docs.yahoo.com/info/terms/
