The country's leading libertarian scholar sets forth the essential principles for a legal system that best balances individual liberty versus the common good.

'Tis true governments cannot be supported without great charge, and it is fit everyone who enjoys a share of the protection should pay out of his estate his proportion for the maintenance of it. But still it must be with his own consent, i.e., the consent of the majority giving it either by themselves or their representatives chosen by them. For if any one shall claim a power to lay and levy taxes on the people, by his own authority, and (...) without such consent of the people, he thereby invades the fundamental law of property and subverts the end of government. For what property have I in that which another may by right take when he pleases to himself. (shrink)

I.WhatVintage ofCivilRights?In this paper I wish to compare and contrast two separate conceptions of civil rights and to argue that the older, more libertarian conception of the subject is preferable to the more widely accepted version used in the modern civil rights movement. The first conception of civil rights focuses on the question of individual capacity. The antithesis of a person with civil rights is the slave. But even if individuals are declared free, they are nonetheless denied their civil rights (...) if they are unable to own property, to enter into contracts, to make wills, to give evidence, and to sue (and be sued) in courts. With all these civil rights claims, the target of the individual grievance is the state; it has denied large classes of individuals the formal capacities that it recognized and protected in others. The Civil War was fought largely over slavery. In its aftermath, civil rights claims protecting individual capacity received explicit, if imperfect, statutory and constitutional protection. The postbellum protections didnotguarantee these rights in absolute fashion – that is, in a way that would not be susceptible to abridgment under any circumstances. Instead, civil rights were protected in what might be called a relative fashion: whatever rights of this sort were enjoyed by white citizens were to be enjoyed by the newly freed black citizens as well. (shrink)

John Donne's song was hardly written in the tradition of political philosophy, but it has a good deal to say about the theme of luck, both good and bad, which I want to address. There is no doubt but that bad luck has bad consequences for the persons who suffer from it. If there were a costless way in which the consequences of bad luck could be spread across everyone in society at large, without increasing the risk of its occurrence, (...) then most of us would pronounce ourselves better off for the change. In this sense it can be said, for example, that there is a utilitarian grounding for a moral obligation to care and provide for those persons who suffer the fortunes of bad luck. For the sake of argument I do not wish to contest this particular starting point, although there are many who would. Instead, I want to ask the question of whether this moral obligation should be converted into a legal obligation, backed by public force. The dominant answer to that question today is yes. Even those who think that markets should determine decisions on production find that the state has a proper role to reduce the adverse consequences of bad luck. My cast of mind is more skeptical. In life, or, in this instance, politics, “come bad chance, and we do join to it our strength.” In general the effort to use coercion to counter the adverse effects of luck tends only to make matters worse. (shrink)

A broad range of intellectual perspectives may be brought to bear on any important social institution. To this general rule, the institution of private property is no exception. The desirability of private property has been endlessly debated across the disciplines: philosophical, historical, economic, and legal. Yet there is very little consensus over its proper social role and limitations. Is it possible to find a unique solution to questions of property and private ownership, good for all resources and for all times? (...) The famous defense of private property that is found in chapter 5 of John Locke'sSecond Treatise of Governmentanswers this question in the affirmative, for Locke writes as though all property was given to mankind in common, and then seeks to find the quickest and most expeditious way to convert all common property into private property. His implicit, but undefended, assumption is that common forms of property are both undesirable and unstable, while private forms of ownership are always just the opposite. Yet his preferred method for moving from a commons to a regime of private property—the unilateral decision to appropriate by each actor—is one that has been frequently condemned as a sop to unbridled egotism, even though it is subject to two constraints: the first against waste, and the second requiring the appropria-tor to leave “enough, and as good” for others. (shrink)

Errata slip inserted. Bibliography: p. 137-140.

With this book, Richard A. Epstein provides a spirited and systematic defense of classical liberalism against the critiques mounted against it over the past thirty years. One of the most distinguished and provocative legal scholars writing today, Epstein here explains his controversial ideas in what will quickly come to be considered one of his cornerstone works. He begins by laying out his own vision of the key principles of classical liberalism: respect for the autonomy of the individual, a strong system (...) of private property rights, the voluntary exchange of labor and possessions, and prohibitions against force or fraud. Nonetheless, he not only recognizes but insists that state coercion is crucial to safeguarding these principles of private ordering and supplying the social infrastructure on which they depend. Within this framework, Epstein then shows why limited government is much to be preferred over the modern interventionist welfare state. Many of the modern attacks on the classical liberal system seek to undermine the moral, conceptual, cognitive, and psychological foundations on which it rests. Epstein rises to this challenge by carefully rebutting each of these objections in turn. For instance, Epstein demonstrates how our inability to judge the preferences of others means we should respect their liberty of choice regarding their own lives. And he points out the flaws in behavioral economic arguments which, overlooking strong evolutionary pressures, claim that individual preferences are unstable and that people are unable to adopt rational means to achieve their own ends. Freedom, Epstein ultimately shows, depends upon a skepticism that rightly shuns making judgments about what is best for individuals, but that also avoids the relativistic trap that all judgments about our political institutions have equal worth. A brilliant defense of classical liberalism, Skepticism and Freedom will rightly be seen as an intellectual landmark. (shrink)

In Anarchy, State, and Utopia, Robert Nozick seeks to demonstrate that principles of justice in acquisition and transfer can be applied to justify the minimal state, and no state greater than the minimal state. That approach fails to acknowledge the critical role that forced exchanges play in overcoming a range of public goods and coordination problems. These ends are accomplished by taking property for which the owner is compensated in cash or in kind in an amount that leaves him better (...) off (by his own lights) than before the transaction. Forced exchanges use coercion to form the state, but the just compensation requirement guards against redistribution state imposed redistribution for collateral purposes. Once these forced exchanges are allowed to form a state, then they may be used thereafter to justify the powers of taxation and eminent domain used to support infrastructure (roads, sewers, public utilities) that neither the minimal state nor private markets can supply. Footnotesa I have benefited from comments at the workshop at the Social Sciences Division of the California Institute of Technology. My thanks to Justin Herring and Eric Murphy, The University of Chicago Law School, for their usual capable research assistance. (shrink)

The inequalities of wealth and fortune form a central part of the human condition, and these over time have been a constant source of social unease. Whether they should be praised and preserved or endured or corrected is an issue that produces uniform discord. One source of this difficulty in analysis stems from the possible ways in which these persistent inequalities arise. It is easy to condemn any differences in wealth created by the victor's expropriation of the vanquished's honest toil. (...) It is far more difficult to condemn those identical differences when they are attributable to the thrift and foresight of the successful relative to the laziness or self-destructiveness of the impoverished. Furthermore, most find it morally ambiguous how best to respond to differences between persons that are the result of luck or chance, such that they do not reflect positively or negatively on either the character of those who have done well or those who have done poorly. (shrink)

John Donne's song was hardly written in the tradition of political philosophy, but it has a good deal to say about the theme of luck, both good and bad, which I want to address. There is no doubt but that bad luck has bad consequences for the persons who suffer from it. If there were a costless way in which the consequences of bad luck could be spread across everyone in society at large, without increasing the risk of its occurrence, (...) then most of us would pronounce ourselves better off for the change. In this sense it can be said, for example, that there is a utilitarian grounding for a moral obligation to care and provide for those persons who suffer the fortunes of bad luck. For the sake of argument I do not wish to contest this particular starting point, although there are many who would. Instead, I want to ask the question of whether this moral obligation should be converted into a legal obligation, backed by public force. The dominant answer to that question today is yes. Even those who think that markets should determine decisions on production find that the state has a proper role to reduce the adverse consequences of bad luck. My cast of mind is more skeptical. In life, or, in this instance, politics, “come bad chance, and we do join to it our strength.” In general the effort to use coercion to counter the adverse effects of luck tends only to make matters worse. (shrink)

Taxation is more than one thing. Taxes can be levied in various ways on various things, with varying effects on a culture and an economy, and raising different challenges of justification.

Managed Care Organizations (MCOs) are frequently criticized for their marketing mistakes. Often that criticism is leveled against an implicit benchmark of an ideal competitive market or an ideal system of government provision. But any accurate assessment in the choice of health care organizations always requires a comparative measure of error rates. These are high in the provision of health care, given the inherent uncertainties in both the cost and effectiveness of treatment. But the continuous and rapid evolution of private health (...) care mechanisms is, in the absence of regulation, more likely to secure access and contain costs than any system of government regulation. State regulation is subject to the risk of capture and to the sluggish and acquisitive behavior of state run monopolies. The proposed fixes for the MCOs (rights to specialists, access to physicians outside the network, guaranteed emergency room access) are likely, when imposed from without, to cost more than they are worth. The long-term risk is that markets will fail under regulation, paving the way for greater losses from massive government control of the health care delivery system. (shrink)

In Simple Rules for a Complex World, I outlined a set of legal rules that facilitate just and efficient social interactions among individuals. Frederick Schauer's critique of my book ignores the specific implications of my system in favor of a general critique of simplicity that overlooks the dangers to liberty when complex rules confer vast discretion on public figures. He also does not refer to the nonlibertarian features of my system that allow for overcoming holdout positions. These “take and pay” (...) rules explain how a system broadly protective of private property responds to well‐known two‐person (Able‐Infirm) hypothetical of the sort advanced by G. A. Cohen, which are designed to show how claims of self‐ownership lend strong support to egalitarian outcomes. (shrink)

This article defends the classical liberal view of human interactions that gives strong protection to associational freedom except in cases that involve the use of force or fraud or the exercise of monopoly power. That conception is at war with the modern antidiscrimination or human rights laws that operate in competitive markets in such vital areas as employment and housing, with respect to matters of race, sex, age, and increasingly, disability. The article further argues that using the “human rights” label (...) to boost the moral case for antidiscrimination laws gets matters exactly backwards, given that any program of forced association on one side of a status relationship (employer, not employee; landlord, not tenant) is inconsistent with any universal norm governing all individuals regardless of role in all associative arrangements. The articled also discusses the tensions that arise under current Supreme Court law, which protects associational freedom arising out of expressive activities (as in cases involving the NAACP or the Boy Scouts), but refuses to extend that protection to other forms of association, such as those involving persons with disabilities. The great vice of all these arrangements is that they cannot guarantee the stability of mandated win/lose relationships. The article further argues that a strong social consensus against discrimination is insufficient reason to coerce dissenters, given that holders of the dominant position can run their operations as they see fit even if others do otherwise. It closes with a short model human rights statute drafted in the classical liberal tradition that avoids the awkward line drawing and balancing that give rise to modern bureaucracies to enforce modern antidiscrimination laws. (shrink)

Over its entire life, the Internal Revenue Code (like other tax systems) has never tried to tax economic income as such, because of the administrative and liquidity problems that arise from taxing any combination of values consumed and from appreciation (or depreciation) of capital stocks. Instead, the common practice limits tax occasions to a realization of income from sale or other disposition of property. Even then, if the proceeds of the transaction are not cash or marketable securities, as with many (...) corporation reorganizations, taxation is deferred until these assets are converted in cash or marketable securities.Any effort to eliminate these twin filters by taxing income—and income regardless of realization—will overburden government agencies and private taxpayers, while reducing economic activity. A wealth tax scores even worse by these welfare measures, creating massive problems of evasion and enforcement that will reduce capital formation across the board in the effort to transfer wealth from the ultra-rich to everyone else. A simple tax structure with affordable rates is the only path to economic prosperity. (shrink)

The current concerns with laggard growth and income inequality have led to a widespread set of demands for more regulation and higher taxation to reverse the trend. These two approaches move matters exactly in the wrong direction. The correct response is to find ways to reduce tax burdens and barriers to entry, and to reduce the political uncertainty associated with new government measures. It may well be too late, worldwide, for a substantial rollback in the welfare state. But the current (...) proposals will only prolong the dismal results on both fronts in any arena in which they are tried. (shrink)

The design of new constitutions is fraught with challenges on both issues of structural design and individual rights. As both a descriptive and normative matter it is exceedingly difficult to believe that one structural solution will fit all cases. The high variation in nation size, economic development, and ethnic division can easily tilt the balance for or against a Presidential or Parliamentary system, and even within these two broad classes the differences in constitutional structure are both large and hard to (...) measure. The only confident claim is that some system of separation of powers coupled with checks and balances is needed. Deciding which system, however, is far harder. In contrast, that same level of doubt does not arise in connection with the correct specification of individual right. Strong systems of negative rights on matters of liberty, property, religion, and speech are preferable across a wide range of social organizations. On the other hand, any effort to create systems of positive entitlements will fail because of the negative effects that they have on wealth creation and the inability to define or limit the scope of the relevant entitlements. (shrink)

It is a common conceit of academic writing to insist that progress in some given area of law or political theory is hampered by hopeless confusion over the meaning of certain standard terms. My usual attitude toward such claims is one of passionate rejection. Because the English language has served us well for such a long period of time, I bring a strong presumption of distrust to any claim of the conceptual poverty of ordinary language. The persistent fears of lack (...) of understanding are in general refuted by the success of communication in ordinary life, as measured by the coordination of human behavior that language facilitates. (shrink)

Most forms of egalitarian theory impose on government to redress the inequalities of fortune that result from bad luck. This Article takes issue with the various forms of this large claim, and argues that decentralized forms of assistance are likely in the long run to do better by the very standards by which egalitarians justify their own program. The alleviation of poverty depends in the first instance on increases in wealth that can only come through private innovation and technological advances. (...) These have in fact produced major improvements in overall well-being, with disproportionate advances for the poor. But if one starts with Dworkin’s unsustainable distinction between option and brute luck, or Nussbaum and Sen’s capability theory, then no egalitarian theory can deliver on the promise to level differences in wealth without seriously compromising overall levels of social welfare. By expanding the scope of government regulation, these proposals open the door to selfish political forces whose political clout ensures that ill-conceived programs, such as the Americans with Disabilities Act, frustrate the very goals they hope to achieve. State intervention to redistribute resources should be understood as a last resort for dealing with problems of ill fortune. (shrink)

Imitation is said to be the sincerest form of flattery. Socially, the proposition may well be true. But in the world of ideas it is false: to the extent that two incompatible traditions use the same words or symbols to articulate different visions of legal or social organization, imitation begets confusion, not enlightenment. The effects of that confusion, moreover, are not confined to the world of ideas, but spill over into the world of politics and public affairs. Words are more (...) than tools of description: they work also as tools of persuasion and transformation. Let a term have a favorable connotation in one context, and its imitative use can mislead people into thinking that a major departure from established practice is merely the extension or updating of an old principle to deal with new circumstances. (shrink)

In this Article, I contest on both theoretical and empirical grounds the progressive agenda, as represented by Hanoch Dagan, that seeks to advance the unionization movement in the name of individual autonomy and property. Theoretically, the Article shows that the common-law account of autonomy, which stresses freedom of action from external constraints involving the use or threat of force, provides the best analytical framework, one that undermines the modern progressive case for collective bargaining by workers. The negative account of autonomy (...) applies to all persons; its correlative duties are simple. It applies regardless of the overall level or distribution of wealth. It is scalable from small to large societies. And it forces employers to respect the full range of material and psychological needs in order to recruit and retain their workers. In contrast, the modern progressive alternative imposes no clear correlative duties on employers. It has no obvious way to constrain the dominance of union forces. And its commands are sufficiently complex that they are often not understood by the workers whom they are intended to protect. Empirically, this Article shows that the institutional rigidity of union structures in dynamic markets fails; and it rejects the claim that individual workers are wedded to their current employer, given competitive forces that allow for rapid entry and exit. Given the long-term systematic advantages of the classical liberal model, it is no surprise that unions are generally in decline in major industrial societies. (shrink)

Political theory has a good deal to say both for and against the establishment of the modern welfare state. As one might expect, most of that discussion is directed toward the expanded set of basic rights that the state confers on its members. In its most canonical form, the welfare state represents a switch in vision from the regime of negative rights in the nineteenth century to the regime of positive rights so much in vogue today. Negative rights—an inexact and (...) somewhat misleading term— stress the right of an individual to be free from certain kinds of external interventions. These rights arrange themselves on two basic lists. The first list generates a set of civil capacities that all individuals enjoy over their own labor and property: the right to contract, to make wills, to sue and be sued, to give evidence, and the like. The second list, from which the term “negative rights” derives, protects all persons from interference, either by force or by fraud, in the conduct of their own affairs. The resulting set of rights is short, snappy, and knowable; it is internally consistent; and it prepares the stage for productive human behavior (exchange) while limiting destructive forms of behavior (theft). Even though it is not couched in explicit utilitarian language, it can surely be defended on general functional grounds. (shrink)

In this paper, I want to explore the relationship between the various forms of individual self-interest and the appropriate structures of government. I shall begin with the former, and by degrees extend the analysis to the latter. I do so in order to mount a defense of principles of limited government, private property, and individual liberty. The ordinary analysis of self-interest treats it as though it were not only a given but also a constant of human nature, and thus makes (...) few allowances for differences between persons. Yet common experience tells us that personality and behavior are as unique as fingerprints. The positive inquiry, therefore, is how we find what is constant about self-interest in a world of natural human diversity. The normative inquiry must take into account both the constant and variable features of human nature in order to determine what forms of social arrangements hold the greatest prospect of long-term social advantage. The gulf between ‘is’ and ‘ought’ must be overcome here, as it must be in all normative discourse. Yet we cannot make sensible judgments of what ought to be the case in the domain of rules unless we first have some idea of what is the case in the domain of behavior. The initial inquiry asks why self-interest is regarded as a constant of human behavior. The explanation derives more from the biological and less from the social. The powerful pressures of natural selection weed out any organisms for whom selfinterest is not the paramount consideration. (shrink)