Education Moulds

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 deontologists—tend
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 or
even eliminated. This entry in the Legal Theory Lexicon will examine libertarian theories of law. As always, the Lexicon is aimed at law students—especially first year law students—with 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 salient—both 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 property—understood 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 idea 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.  Many libertarian theorists have recognized this problem and
replace "harm" with "rights violation" as the relevant principle that
defines the limits of governmental (or social) coercion.

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"
famously drew Justice Holmes’s fire in the famous lochner dissent.
Libertarian thought is also related to anarchism, with roots in the
thought of William Godwin, Pierre-Joseph Prodhoun, and others.

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 contingent—it 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
programs—providing 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 government—one 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 Rawls—himself, 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
interests—whatever 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 government—as
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 anarchism—the 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 ways—with 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 merits—as 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 (Oxford: Oxford University Press, 1998).

Richard A. Epstein, Skepticism and Freedom : A Modern Case for Classical Liberalism (Chicago: University of Chicago Press, 2003).

Robert Nozick, Anarchy State and Utopia (New York: Basic Books, 1977).

 

(This entry was last revised on November 2, 2008.)

Source: Lawrence Solum

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