Legal Theory Lexicon

This is a collection of the Legal Theory Lexicon posts from Legal Theory Blog. A new entry appears each week on Sunday. The most recent posts appear on this page. To access older posts use the "Table of Contents" below. (Many of the Legal Theory Lexicon posts have benefitted from comments by Ken Simons of the Boston University School of Law.)

Sunday, June 26, 2005

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 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. 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 is important—both to libertarian theory and American constitutionalism. For the purposes of this discussion, the important idea 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 day 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.
    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 utilitarianism, because we reject the foundations. One alternative would be to try to argue for libertarianism on the basis all of the different moral theories, but that is obviously a very time-consuming and difficult task. Another approach would be to articulate shallow foundations for utilitarianism—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-- have 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 private firms 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.