OF LAW AND LIBERTY

The problem is not that the book departs sharply from Epstein’s past work. In fact, as he explains in the preface, the book was originally conceived to collect previously published essays and articles. And yet, in its finished from, the book proves far more ambitious than Epstein’s earlier works.

In a dozen previous books, Richard Epstein has tended to focus on Particular questions of public Policy: discrimination law in his 1992 Forbidden Grounds and the over-regulation of health care in his 1997 Mortal Peril. He did make a more general case for eschewing complex schemes of regulation in his 1995 Simple Rules for a Complex World, but the argument was weighted toward practical effects. In his 1985 Takings: Private Property and the Power of Eminent Domain, Epstein argued for a far-reaching understanding of a particular constitutional guarantee, but his case was still rooted in the “takings” clause of the Constitution. In his new book, Epstein purports to give the most general overview of his position. But, rather than adding more force to his arguments, this broader work highlights the limitations of his approach.

The limitations derive from the distinctive angle with which this particular law professor views the world. Epstein is hardly unusual nowadays, even in the legal academy, for rising to the defense of free markets. But he is not simply another follower of the “Law and Economics” movement associated with Judge Richard Posner (who was Epstein’s Colleague at the University of Chicago in the 1970s). The Law and Economics movement focuses on how legal norms can promote economic efficiency, while Epstein links economics to questions of justice. Among his first important scholarly works was a series of articles — published, in fact, as an exchange with Posner — on whether tort pleadings can really be conceived in purely procedural terms, without reference to the justice of the individual claims.

Epstein comes to debates on larger constitutional issues from a perspective he developed in his work on private law claims. (He is the editor of one of the most widely used textbooks on the law of torts.) At the core of his scholarly project is his effort to clear away decades of leagl-realist confusions and restore the prestige of nineteenth-century case law on basic legal principles. In many chapters of this books, as in his previous work, he delights in showing that a Latin maxim from Justinian is vindicated in the ruling of a nineteenth-century English or American court and that the result reflects a powerful legal logic. He argues that traditional rules regarding contract and property follow from powerful intuitions about the human incentives needed to maintain stable and workable system of cooperation and exchange.

Epstein’s version of laissez faire does not celebrate the heroic individual, in the manner of Any Rand. On the contrary, he is concerned with how society and its various components adapt to changing conditions. He how interesting things to say about the usefulness of custom and the importance of social norms in encouraging cooperative behavior. One of his arguments in that the heavy hand of law often displaces the more flexible bargaining that takes place where loss of reputation is the main sanction (as in bargaining between landlords and tenants or between employers and employees).

At the same time, Epstein is not determined to restrain the law within formalistic limits, in the manner of Friedrich Hayek. In some ways Epstein is quite open to variations on his basic formulas. He has an interesting chapter or why common property (as in shared pasture land) works well in some circumstances. Another chapter argues that in some circumstances, the legal system must allow special claims again common carriers (such as railroads or phone lines). His general approach is to show that variations from the usual rules can be justified by particular circumstances. He explains why it is sensible to attribute ownership of an entire cave to the owner of the land at the cave’s mouth, rather than forcing courts to sort out the conflicting claims of all those with land above the cave. He argues, then, for practical or utilitarian adjustments to the otherwise expected rights of owners, when he cost of enforcing the usual array of rights seems disproportionate.

But Epstein almost always comes back to the underlying logic of traditional notions about private property. He continually emphasizes the social and economic reliance on voluntary exchange, with government largely limited to preventing the use of force or fraud. His concern, as he says, is with “demonstrating the eerie congruence between natural law and utilitarian theories ories on some of the key building blocks of our own legal tradition.”

So, for example Epstein makes a compelling distinction between acceptable environmental regulations that protect property from drifting pollution, and unacceptable land-use controls that essentially recruit an owner’s property for public benefit (because it is, say, un unspoiled wilderness). In the usual approach to land-use controls, an owner’s use of his land may be limited by the state even when the proposed use does no harm to his neighbors or anyone else. Owners are typically offered no compensation from the public treasury for what is, in effect, a taking of the owner’s property.

And yet, however interesting particular passages in Epstein’s argument are, the whole seems less than the sum of its parts. One can grant that twentieth-century complexities do not negate the force of nineteenth-century reasoning about property rights. But that doesn’t necessarily require one to endorse the wider libertarian vision that Richard Epstein is trying to promote.

To start with, Epstein does not inspire trust as a guide to the past. He is so anxious to demonstrate his “eerie congruence between natural law and utilitarian theories” that he doesn’t pay close attention to what any particular thinker actually said. He reproaches John Locke for mistaking the natural origins of property — and then ignores that Locke took back important elements of the theory in his account of property in civil society. At the some time, he fails to recognize how much Locke altered earlier natural-law doctrine precisely to accommodate what later generations would call “utilitarian” reasoning. Epstein does not notice how much “utilitarian theories” already take for granted the equality of individual preferences and how contrary such assumptions are to the understanding of natural law in ancient and medieval thought. Epstein is so cavalier about his philosophical authorities that he twice calls Samuel Pufendorf a “Dutch thinker,” when that seventeenth-century figure was the model of a long-winded German pedant.

Nor is Epstein interested in actual history, even when in come to our own constitutional history. He summons nineteenth-century judges without noticing that their strictures on property and contract law went along with a ready acquiescence in criminal laws against vice and in government expenditure on a variety of public undertakings, including public hospitals, schools, and universities. Judges before the New Deal Favored “limited government,” but they were not, in the modern understanding, “libertarians.” Epstein surely knows this but he seems uninterested in what they actually thought about the permissible role of government. So, for example, his discussion of “harms to self” focuses on tort principles, but skates right past the question of assisted suicide, despite the English jurist William Blackstone’s famous denunciation of suicide (“the pretended heroism but real cowardice of the Stoic philosophers, who destroyed the themselves to avoid those ills which they had not the fortitude to endure”) and despite the fact that all American states adopted the commonly prohibitions against suicide.

Finally, there is something dismayingly unpolitical about Epstein’s analysis. He strives to demonstrate that the broad programs of public control we have seen in this century rely on faulty reasoning. He is not much interested, though, in how those programs came about — that is, precisely how Americans and their elected representatives were deluded into thinking they were better off with more government control. He is even less interested in thinking about how we might be persuaded to cut government back. So, in a remarkably brief discussion, he suggests are improper, but offers no serious advice on how politicians could explain this to the electorate.

In all this, Epstein argues essentially as a lawyer. He often has a good analysis of the particular rule or policy or program he is attacking. But even though this book is intended to be a general overview, Epstein never puts his analyses together into a satisfying account of what is required to maintain a free society over time. This book would have been better entitled, “Some Principles for a Free Society.”

It is not always a bad thing to argue like a lawyer. The framers of the Constitution were, for the most part, lawyers. So, too, were some of the greatest American statesmen, like Webster and Lincoln. Certainly it’s grotesque to see activists of the left trying nowadays to squeeze a whole ambitious political scheme into a lawsuit. But it’s equally unsettling to see libertarians diminish great public questions to legal claims that citizens can press against one another. The legal parameters of Epstein’s thought are relentlessly reductive.

In talking about the dangers of “altruism,” for example, Epstein Cautions that a generous welfare state invariably limits its own capacity for immigrants: “So long as redistribution remains the internal norm, it is just too costly to allow outsiders to share the benefits. The price of a strong program of domestic welfare places unnecessary obstacles in the path of free immigration.” There is certainly a serious point here. Ambitious domestic welfare schemes do complicate immigration, as recent debates in California and Florida have reminded us. But why should we regard “free immigration” as the ideal?

Thomas Jefferson, who has some claim to be ranked among the champions of individual liberty, didn’t think so. He worried that too many foreigners accepted in too short a time would threaten the country’s political traditions. Jefferson may have been wrong, but the question doesn’t even cross Richard Epstein’s horizon. Epstein’s approach, as he himself says, “hews to the reductionist view of human nature and social organization that lies at the heart of [his] methodological approach. “The problem is that Epstein’s methodological approach isn’t up to the task he sets himself. Neither his reductionist approach nor his legal formulas add up to a real country — much less a stable republic.

 

Richard A. Epstein

Principles for a Free Society

Reconciling individual Liberty with the Common Good

Perseus, 360 pp., $ 30

Jeremy Rabkin teaches in the government department at Cornell University.